Right of occupation - apply for probate?

If a half share of the home owned as tenants in common has been left on trust for the spouse to occupy and all other assets have passed by survivorship, would it be advisable for the trustees to apply for probate and have the property assented to themselves along with the spouse - or is that not necessary?

Gervase Harson
Ferns Solicitors

This topic has been raised before on the forum, and I recall that opinions were somewhat divided, but it was also raised by one of my colleagues recently, so this is the response I gave to him:

My view and reasoning is as follows:

· No Grant is needed to deal with the legal title to the property as that passes by survivorship to the surviving trustee.
· The question is therefore whether a Grant is needed to deal with the beneficial interest, or for any other reason.
· The authority of an executor comes from the Will itself, not the Grant of Probate. The Grant is confirmation of that authority.
· Grant of Probate is required only when you can’t deal with the assets of the estate without it. For example, if the property is registered in the sole name of the deceased, the Land Registry will not change the register without a Grant. And banks will require a Grant where there are substantial cash deposits.
· By contrast, banks and company registrars will release assets to the executors (or even to the next of kin) without a Grant in cases where the value is less. Similarly, I have known cases where private company shares with substantial value have been transferred after death without a Grant, and in all these cases what it comes down to is whether the bank or company is willing to take the risk of releasing or transferring the assets without the protection of a Grant of Representation.
· The legal owners of the property, i.e. the surviving spouse and whoever she appoints as co-trustee, need to be sure that they are dealing with the property and ultimately distributing the sale proceeds in accordance with the correct beneficial ownership and the Will, but if they are happy to do that relying on the Will without a Grant, then my view is that they can do that and therefore no Grant is required in order to deal with the property.

So the answer is, “it depends”, but I hope that helps. And of course, if others disagree no doubt they will let me know.

Diana Smart
Gordons LLP

You would not want to do this if there was any risk of a claim under the Inheritance (Provision for Family and Dependants) Act, as I believe a claim can now be made without a grant, but time does not start to run until the grant of probate/ letters of admin.

Simon Northcott

I often come across the same “issue”. If the surviving spouse appoints say a child as a co-trustee of the property, then when the surviving spouse dies, the child can then deal again without obtaining probate. It seems odd that in cases where we are severing joint tenancies and creating trusts of property in Wills, that quite often, the entire property and the trusts of it can be dealt with, without the need to obtain a grant.

I think its advisable to obtain a Grant firstly to start time running in case of any claims and secondly to confirm the validity of the last Will in case there is a query down the line regarding the trust. the later seems to be more of a technical point though. This advice is not always followed though especially where the Trustees of the Trust are the children and remainder beneficiaries.

Justin Wallace
Brewer Harding & Rowe