Conveyancing FAQs Following a Death.
In this section we answer the most common conveyancing questions following a death.
By law, the Land Registry always has to assume that the Personal Representatives of the Deceased are following the wishes of the Deceased and are acting within their powers. The Land Registry are not empowered to investigate whether any transfer of the property is in accordance with a Will.
Depending upon the wishes of the Deceased or their Will the Personal Representatives may:
- Become the registered owners in their capacity as Personal Representatives.
- Transfer the property to the Executor of the Will of the Deceased as Trustee.
- Discharge a mortgage if the Deceased was the lender.
- Transfer the property to any Beneficiary of the Will of the Deceased.
- Transfer the property to someone else in their capacity as Personal Representatives.
What happens if a joint owner dies?
When property is owned jointly or by several owners as joint tenants the surviving owner (s) may apply to the Land Registry to register the property in their sole name. There is no fee for this but you will need to send the Land Registry:
- A completed form DJP (See the Land Registry web-site for the form)
- Evidence of death (the original or official copy of the death certificate, the grant of probate or letters of administration).
When a property is owned jointly or by several owners as tenants in common their share of the property must be dealt with according to the Will of the Deceased.
The Deceased is the sole owner or last surviving joint owner of the property then the Personal Representatives of the Deceased will deal with the property.
- The property will be conveyed to the new owner by means of a Deed called an Assent or a Transfer. The new owner of the property will then have to apply to the Land Registry for first registration of the property.
Can a Personal Representative apply to become the registered owners of a property.?
In answer yes, a Personal Representatives may apply to become the registered owners of a property under the following curcumstances.
- If the Beneficiary of a Will is a minor and not able to inherit. In this case, the Personal Representatives become the registered owner, but only as Personal Representatives of the Deceased.
- Once they are registered as owners of the property, the Personal Representatives can later Transfer or Assent the property to the Beneficiaries of the Deceased.
The beneficiaries of the estate may also become the registered owners. In this case they will need to
- Produce the original or an official copy of the grant of probate or letters of administration.
- Provide a stamp duty land tax certificate and the appropriate fee. If the beneficiary is already a joint owner of the estate there is no fee to pay.
- The beneficiary can apply directly to the Land Registry but this can be complex and a Probate Specialist Conveyancer will be able to deal with this for you easily and efficiently.
Following grant of probate or letters of administration the property may be legally transferred to a third party upon production of the grant of probate/letters of administration.
Form AS1 will be used to assent, i.e. transfer, the whole of one or more registered titles to the beneficiary or beneficiaries.
If form AS1 is not appropriate then one of the following forms may be used:
- Form AS2 – assent of a charge (mortgage) (i.e. where the deceased was a lender);
- Form TP1 – transfer of part of one or more registered titles..
- Form AS3 – assent of part of one or more registered titles;
- Form TR1 – transfer of the whole of one or more registered titles;
If you do not know whether the property is registered, you may:
- Use the Land Registry’s online Find a property service or
- Carry out a search of the index map. You can do this by completing and sending form SIM to the Land Registry office responsible for the property you are dealing with.
- If you have appointed a Probate Specialist Conveyancer to deal with the Transfer or Assent of the property, they will check with the Land Registry to see whether the property is registered and if necessary, will carry out a search of the Index Map for you.
If you have appointed a Probate Specialist Conveyancer to deal with the assent for you, they will obtain up to date official copy entries to check the register before proceeding with the assent or transfer. There may be entries on the register that you will have to consider before you can complete the transfer of the property. These may include:
- Restriction: an entry requiring the consent of someone before a particular dealing with the property can take place. This could be a lender, a local authority charge, a party with matrimonial rights, a party with rights of occupation or in the case of leasehold property a Landlord or management company.
- Notice/Caution: you may need to apply for their cancellation or removal before you would want to go ahead with the transfer. As above this could relate to a financial, matrimonial or right of occupation charge on the property.
- Leasehold Land: if your property is leasehold, there is usually a clause in the lease requiring the landlord to give his consent, or at least to be informed.Transfer the property to someone else in their capacity as Personal Representatives.
- Morttgaged Land: If the property is mortgaged, and you do not intend to repay the mortgage in full, you will need to obtain the consent of the lender if you want to transfer the property. If you are paying off the mortgage, you will need to obtain evidence of the discharge of mortgage.
- Alternatively, you can: View or download a copy of the register using the Land Registry’s online find a property service or get an up-to-date official copy of the register. You can do this by sending form OC1 to the Land Registry office responsible for the property you are dealing with.
- Please note that this is not a full list of the entries that may appear on the register relating to the property.
There are many other matters which do not concern the legal transfer of the property, but may be very important to you. These may include,
- for example the taxation implications of the Assent or Transfer of the property and you should seek the advice of your accountant before proceeding.
Normally SDLT evidence is not required and you may sign a self-certificate. However,
- if the person acquiring the property gives a consideration of £40,000 or more for it, other than where they assume responsibility for a secured debt, a Land Transaction Return certificate in form SDLT5 will be required.
- If you are unsure if your transfer requires a Land Transaction Return certificate, your solicitor will advise or you may contact HM Revenue and Customs enquiry line on 0845 603 0135 for advice, or on-line at www.inlandrevenue.gov.uk/so.
To obtain further assistance or information, you can:
- Access the Land Registry website www.landregistry.gov.uk
- Telephone Customer Support on 0844 892 1111