S54 application and TRS

Yet another question for the forum relating to TRS.

A property is owned by H and W as tenants in common in equal shares.
H dies and in his Will, leaves his entire estate to his 2 children.
W has lost capacity.
W is now sole legal owner of the property.
The 2 children are Mum’s Deputies under CoP.
s54 application has been made and Order has been received appointing them as Trustees so that property may be sold.

My question is this - is there, at present, a trust to be registered?

Many thanks

The property is clearly held on trust and once H has died must surely have become registrable as no longer complying with the co-ownership exclusion. If the children become trustees with the mother it may be that the exclusion will apply once more. It seems more likely that the children may have become trustees to the exclusion of the mother, given her incapacity, and then the exclusion would not apply, once again.

The narrowness of the co-ownership exclusion means that such a trust may be excluded/registrable intermittently, as the number of trustees or beneficial owners change. I happen to know of a trust with two trustees and up to 15 beneficial tenants in common which change imposing a burden of updating the details each time. I am not sure the draftsman or HMRC foresaw this possibility (sadly like many others) or that the system can cope with intermittent exclusion. TRSM23050 ignores this. It seems to assume that a trust is registrable (if not excluded at first registration) and then unless closed remains on the register despite supervening exclusion. Of course if an initial exclusion is lost the trust then becomes registrable. If a sale is truly imminent it is a dilemma whether to register or not but there are sanctions for not doing so if the law requires it in TRSM 80000.

It is not stated whether the will creates a trust over the estate or not, even if the children are absolutely entitled. If it does it is separately registrable subject to the 2 years after death rule.

(It is not clear whether the children are Trustees of the property only or of any Will trust too).

Jack Harper