If you are reading this article, you have probably lost someone you know, perhaps close to you. In which case, we are sorry for your loss. But, on top of losing your loved one, you are now faced with the challenge of selling the property that they owned or transferring it to a new owner, who may be you.
How a post-mortem transfer of property is done depends very much on how the deceased owned the property – whether on his or her own (sole owner) or together with someone else (co-owners). It’s a good idea to ask a licensed conveyancer or conveyancing solicitor to help you deal with the transfer of a property.
How to transfer a property owned by a sole owner?
If a property was solely owned by the deceased at the time of death, then it must be distributed to the beneficiaries by the executor or the administrator of the estate.
If the deceased has left a will, it will say who the deceased wanted the executor to be. However, if you are named in the will as the executor, it does not give you the automatic right to take ownership or control of the property. You need to apply to the court for a grant of probate. Once you have your grant of probate, you need to make an application to the Land Registry to change the register using form AP1. This needs to be accompanied by a sealed or certified copy of the grant of probate and a document called an ‘assent’ (form AS1). The Land Registry will record the beneficiaries (as stated in the will) as the new owners.
If the deceased has not left a will, then it becomes a bit more complicated. The deceased’s next of kin must apply to the court for a grant of letters of administration. But it serves the same purpose as the grant of probate, except that the beneficiaries are identified according to the rules of intestacy (the sum of previous court decisions saying who should inherit).
The general term for the grant of probate and the grant of letters of administration is grant of representation.
How to transfer a property owned by joint owners?
There are two ways that the deceased could have co-owned the property with someone else.
Property Owned as Joint Tenants
Firstly, co-ownership could have been in the form of what is known as a ‘joint tenancy’ – this is often how a married couple own a property. If a property is co-owned as a joint tenancy, it means that all co-owners own the whole property, without any division. So, when one co-owner dies, their ‘share’ automatically goes to the remaining co-owners, without the need for a grant of probate or grant of letters of administration. The surviving joint owner only needs to send the Land Registry a death certificate along with a Deceased Joint Proprietor form (DJP form) and the Land Registry will amend the title.
It doesn’t matter if the deceased expressed in a will that their share should go to someone else – if the property is co-owned as a joint tenancy, then the property remains in the hands of the surviving co-owners.
Property owned as Tenants in Common
The other form of co-ownership is a tenancy-in-common, where each co-owner owns a specific share of the property. In this case, the deceased’s share can be passed onto someone else, in accordance with the deceased’s will or the rules of intestacy. An executor or administrator can then transfer the deceased’s share to the intended owner.
How do you know if the deceased co-owned the property as a joint tenant or tenant-in-common? If you have appointed a conveyancing lawyer, then your lawyer will be able to advise you. Otherwise, the best place to look is the title document, provided by the Land Registry. For a tenancy-in-common, the title document will contain the words:
“No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court”.
If these words aren’t there, then the property was owned as a joint tenancy.
How to transfer a property with a mortgage?
Unfortunately, if there is a mortgage on the property, there is an extra hurdle to go through before the deceased’s share can be transferred.
It is important to make sure all the monthly mortgage repayments are continued to be made until you have reached an agreement with the lender.
You will need to, as quickly as possible, contact the bereavement department of the lender to obtain their consent to the transfer – they will tell you which documents they need to see but they will probably include the death certificate. They will also want to do an affordability assessment to check whether you can afford to pay the mortgage repayments. If you have appointed a conveyancing lawyer to assist, they will be able to contact the lender on your behalf.
The mortgage is on the whole of the property. If the mortgage is in joint names, then all surviving joint owners remain liable for the whole of the balance.
Most lenders including Lloyds, Barclays, HSBC, Santander and Nationwide Building Society, are members of the Death Notification Service. You can use this free service to update them all in one go, especially if the deceased had more than one mortgage as well as other financial products, such as current accounts, savings accounts, etc, with different providers. It is quick and easy to use, and you do not need to even register an account to use the service.
Dealing with the transfer of a property on the death of a person can be very stressful but our friendly and caring team of conveyancing lawyers at Phew Conveyancing can help you through the process. Please contact us for free initial legal guidance.
