Is a Grant of Probate needed when property is held as T in Common with one half being held by Trustees on a life interest trust


In the following situation - H + W held the property as tenants in common, W died her share of the property was then held on a life interest trust with H as the life tenant and their 3 children as the trustees. The 3 children are named as trustees on the legal title as trustees of W’s half share and they are also the ultimate beneficiaries when the life interest terminates. H has now passed away and his Will leaves his share of the property to their 3 children.

  1. As the 3 children are named as trustees on the legal title albeit as trustees of W’s half share would they still require a Grant of Probate in order to transfer H’s share of the property to them?
  2. If a Grant is not required what steps need to be taken with the Land Registry?

Thank you

Kind Regards

I would advocate a grant being obtained as, without this, the children may not be able to evidence their right to H’s share of the property at a later date, if such evidence is required.

There are other reasons why I consider a grant should be obtained, as discussed in an article of mine published by LawSkills in December 2022. Unfortunately, following Gill Steel’s retirement the website is no longer operating, but I am happy to share copies of the article upon request.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

I am puzzled as to how the children came to be “named as trustees on the legal title as trustees of W’s half share”.
On W’s death the legal title would have passed to H alone [as surviving trustee of land]; the children as [apparently] trustees of W’s estate would have no automatic right to the legal title, but would merely be “beneficiaries” of the trust of land.
Did H subsequently appoint the children as co-trustees of land? That would explain their names on the title, but they should understand that if so they hold as trustees, half for themselves as trustees of W’s share and half for H’s estate.
In this case all that need be done is to produce H’s death certificate to Land Registry to clear his name from this. There will be no need to obtain probate to make title to the house, whether this is needed, or even desirable, for other reasons is a separate question.

Thank you Paul and Kevin for your replies.

Kevin, my understanding is that as H & W were tenants in common and not Joint Tenants then the legal title would not automatically pass to H on W’s death instead the trustees are named on the title as holding the share of W firstly for the benefit of H as Life Tenant of the Trust and ultimately for themselves once the Life Interest Trust came to an end. Legal title would only pass to H alone if H&W had been Joint Tenants?

Isn’t the legal title always held as joint tenants under s.1(6) Law of Property Act?

Yes I understand what you are saying and I think it is the way I have worded the query which is causing the confusion. It comes back to different firms seems to have different methods of dealing with an IPDI some seem to amend the title with the Land Registry to name trustees of first spouse to pass away along with SS to document the beneficial interest on the property register others just add a restriction and then some would suggest that you would not make any changes to the records at the Land Registry. There does not seem to be an agreed, uniform approach across various different firms dealing with the same situation. In this case they had added the names of the trustees at the Land Registry so that the title register reads ‘H’ (as the survivor) and ‘A, B and C as the trustess of the W Will Trust’.

I dont think it is a case of some firms have different methods, but rather that different circumstances warrant different approaches.
The first rule I explain to most trainees is legal title is always a joint tenancy… and then I repeat that at least 50 times over the next five years! Eddie has helpfully quoted chapter and verse for this. Anyway the point being that the surviving legal owner is therefore effectively in charge and does not have to agree to the trustees of the deceased being added to the title, but common sense dictates that this is a reasonable course of action.

As to whether a grant is required, again I would say circumstance dependent. If I owned my home as a tenancy in common and my wife were to die (heaven forbid!), then I would not take out a grant for her estate. I could possibly simply sell the home, (possibly due to the grief of having lost her… or rather to do away with the memories - take it as you read it). In order to sell the home, I just need a second trustee to be added to give valid title. That should not cause a problem for the purchaser.

Thank you, that is helpful.