Q&As

A property is held as tenants in common. The first owner has died and the second lacks capacity. There is a life interest trust. The family have an enduring power of attorney (EPA) and want to add trustees to the title. Can this be done? If the family wish to sell do the trustees need further powers or leave of the court?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 05/10/2020

The following Property Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • A property is held as tenants in common. The first owner has died and the second lacks capacity. There is a life interest trust. The family have an enduring power of attorney (EPA) and want to add trustees to the title. Can this be done? If the family wish to sell do the trustees need further powers or leave of the court?

A property is held as tenants in common. The first owner has died and the second lacks capacity. There is a life interest trust. The family have an enduring power of attorney (EPA) and want to add trustees to the title. Can this be done? If the family wish to sell do the trustees need further powers or leave of the court?

The legal ownership of jointly owned property in England and Wales (though not Scotland) is always held as joint tenants. This means that when one joint owner dies, their interest passes to the remaining joint owner(s) by virtue of the doctrine of survivorship, and does not fall within their estate, the rationale being that joint tenants each own the indivisible whole. The beneficial ownership of property can be either as equitable joint tenants or as tenants in common, with the latter meaning that they have a defined share which they can leave as they wish by will or under the laws of intestacy.

It appears in this scenario that the deceased owner has left their beneficial interest in the property to a

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