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?

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 pro

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