Q&As

A property was held by spouses, who have both died intestate, as tenants in common with the appropriate restriction at the Land Registry. Wife predeceased husband but no grant was obtained. A grant to husband’s estate was obtained. Can a second trustee be appointed to sell the property without obtaining a grant in respect of the wife's estate?

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Published on LexisPSL on 28/06/2017

The following Wills & Probate Q&A provides comprehensive and up to date legal information covering:

  • A property was held by spouses, who have both died intestate, as tenants in common with the appropriate restriction at the Land Registry. Wife predeceased husband but no grant was obtained. A grant to husband’s estate was obtained. Can a second trustee be appointed to sell the property without obtaining a grant in respect of the wife's estate?

A property was held by spouses, who have both died intestate, as tenants in common with the appropriate restriction at the Land Registry. Wife predeceased husband but no grant was obtained. A grant to husband’s estate was obtained. Can a second trustee be appointed to sell the property without obtaining a grant in respect of the wife's estate?

Where property is purchased in the joint names of two or more co-owners, a statutory ‘trust of land’ arises. Where property is held on a trust of land, the legal estate and equitable estate are separate. The co-owner trustees must hold the legal estate as joint tenants. A legal joint tenancy cannot be severed and when one joint tenant dies his legal interest in the property automatically passes to the surviving joint tenants. However, co-owners can hold the beneficial interest in the property on trust for themselves (and any additional co-owners) as:

  1. joint tenants, or

  2. tenants in common

Tenants in common are also each entitled to the whole property, however, each tenant has an interest in a notional share of the property (eg one half, one fifth etc) which can be realised when the property is sold. When one tenant in common dies, his beneficial interest in the property forms part of his estate and passes by will or under the rules of intestacy.

All trustees must join in

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