Property Solicitors Near Me Archives

Making An Offer On A Probate Property

Making an offer on a probate property is fairly common. There are even some upsides compared to buying other properties.

However, there are also some important things to be aware of. Not least, the effect that the probate process can have on things.

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Here is what you should know about probate property if you are considering making an offer on one:

What Does Probate Mean?

Probate is the legal right to administer the estate of a person who has died. The person who is responsible for applying for probate (and the only person who can normally do so) is someone named as the executor of a will.

It is the executor’s job to carry out the wishes listed in the will. This involves distributing the deceased’s assets (money they owned, personal items, and – most importantly for our purposes – property) to the beneficiaries named in their will. They are also several other vital duties.

If the person who left the will had any debts, they will need to be paid off. Rarely, this may necessitate selling off a property – but only if it is in the interests of the beneficiaries. On other occasions, a will stipulates that a certain property should be sold in a certain way.

But the executor cannot start to properly administer the estate until they have probate. This comes in the form of a legal document called a Grant of Probate. The process of applying for this takes time.

What Is A Probate Property?

The length of time required to successfully apply for probate and receive the grant can run into weeks and months. Eight or even twelve weeks is the average timeframe that’s normally suggested.

During this time, an executor cannot sell any property that is part of the estate in question. They can, however, start taking offers.

“Probate property” is the term used to describe a property that is part of a deceased person’s estate where the Grant of Probate is yet to be acquired. It is on the market and open to offers but it cannot yet be sold.

Can You Make An Offer On A Probate Property?

Yes, you can make an offer on a probate property. Executors can and regularly do put these properties on the market before they are able to actually complete a sale.

This is because part of the process of applying for probate involves getting a property valuation so that the correct inheritance tax can be calculated. It often makes sense to then at least start the sales process.

In many ways, there is little difference between buying a probate property and buying any other. The only difference is that there will definitely be some time before you are legally allowed to buy the property.

Given the potential length of any given conveyancing process, this isn’t always a problem. That said, there are some ways probate properties can differ from the norm.

The Benefits Of Buying A Probate Property

Can be open to a lower offer – probate properties may previously have been inhabited by an elderly person who could not care for it as they might have liked.
Might be good renovation projects – for similar reasons, probate properties can require some renovation work.
Will not be part of a chain – though often keen to complete, the seller is likely to have much more flexibility than others and won’t be in a chain.

What Are The Problems With Buying A Probate Property?

1) Legal Right To Sell

One unusual thing about probate property is that the person selling it is not normally the person who owns it. This can create difficulties.

The executor of an estate is in charge of administering it. This may include selling any property that the will stipulates or potentially that the estate’s finances make clear is in the interests of the beneficiaries.

Sometimes though, beneficiaries do not wish a property to be sold. This disagreement can even go to court in some cases.

You will also always know that the person selling a probate property – by definition – does not have the legal right to sell it just yet. They won’t have it until they receive that Grant of Probate permission document.

2) Potential Delays

The probate process isn’t always a smooth one. It is always worth asking how far through the process the seller is and how likely it is for issues to be raised. The estate agent may know – or you might be able to get your solicitor to find out for you.

On your side, it’s wise to consider whether you have other people (for example, in a chain) waiting on you to make this purchase.

If there is a problem with the seller getting their Grant of Probate, will everyone else on the chain be happy to wait? Probably not.

3) Possible Lack Of Information

Because the seller of a probate property is not the owner, they may not have as much information about the property to hand.

This means they might not be able to complete the Property Information and Fittings and Contents forms as completely as you might like. This makes it doubly worthwhile getting your own survey done and confirming your conveyancing solicitor will complete extensive searches.

Do Probate Properties Sell For Less?

Possibly. But only because they can be older properties that may benefit from some renovation work.

The executor is required to sell the property at a fair market value. They’re actually potentially liable for the difference if it isn’t, so don’t expect discounts on probate properties for anything other than things the market would usually price accordingly.

Making An Offer On A Probate Property

Making an offer on probate property can be a great idea. But it’s something you should always do with care – and with expert legal advice on your side.

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Deed of Variation

Expert Deed Of Variation Solicitors

If it is necessary to alter a Will or a lease, it may be possible to do this by executing a deed of variation. We take a look at when a deed of variation can be used and why.

At Solicitors Near Me, we connect people to legal experts to help in a wide range of circumstances. Our service will match you with a solicitor with the right level of expertise to deal with your case.

We select our solicitors for their legal excellence as well as for the high level of service they provide. If you need a deed of variation prepared or advice on whether this is the right option for your circumstances, we can find you a solicitor to give you the guidance you need.

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What Is A Deed Of Variation?

A deed of variation is a legal document that can formally change the terms of either:

A Will; or
A lease

When Do You Use A Deed Of Variation?

Deed Of Variation Of A Will

A deed of variation of a Will is used by beneficiaries who want to change the terms of a Will. A beneficiary can only make a deed of variation to change a Will in certain circumstances and the change can only relate to the portion of the estate that they are entitled to receive and not to anyone else’s share.

The deed of variation will set out what the beneficiary wants to happen to their inheritance instead.

Why Vary A Will?

There are many reasons why you may want to change the terms of a Will to allow someone else to benefit from your inheritance, including:

To avoid paying Inheritance Tax on the same money twice, firstly when money is passed to you and then in time when it is passed on to your choice of beneficiary. If the money goes straight to the final beneficiary, it will not form part of your estate, so no Inheritance Tax would be payable on it
To reduce a Capital Gains Tax liability
You would like someone else to benefit from the money now and you do not need it yourself
You feel that the money should have been shared differently and you want to put that into effect, for example, someone may have been excluded from the Will or a child has been born since the Will was written
You would like to make a donation to charity and by changing the Will, Inheritance Tax will not have to be paid on the money going to charity

Legal Advice On Varying A Will

It is important to take legal advice before agreeing to a deed of variation. There could be implications for others as well as yourself, for example, the estate could become liable for more Inheritance Tax if the deceased was your spouse and you leave your inheritance to someone else. This is because, as a spouse, you would not pay Inheritance Tax on money from your spouse’s estate.

Tax issues surrounding inheritance are notoriously complex and you are strongly advised to speak to an expert Wills and probate solicitor who will be able to ensure that any changes you make are beneficial and that you fully understand the implications of making them.

Who Can Vary A Will?

To vary a Will, you and all of the beneficiaries named in the Will need to be aged 18 or more.

All of the beneficiaries must agree to the proposed changes. You cannot be compensated in return for agreeing to adjust your share, either by another beneficiary or by anyone else.

In some circumstances, the court may need to give its approval to a deed of variation, including where children or unborn children could be affected by the change.

Deed Of Variation Of A Lease

A deed of variation of a lease can be used to change certain terms contained in a lease. This is the document made between the freeholder of a property and someone who has a leasehold interest. A common example is a flat owner, where the freeholder owns the land and buildings and the flat owner has a lease of their individual flat.

Leases are lengthy documents containing many terms and conditions, including the length of the lease, the rent payable, requirements to give notice in respect of certain issues such as alterations and restrictive covenants preventing the leaseholder from carrying out certain actions, such as keeping pets at the property.

Why Vary A Lease?

You may want to vary your lease for a variety of reasons, including to:

Extend the term of the lease informally by agreement with your landlord
Address a legal issue so that you can sell the property
Amend or remove a restrictive covenant, for example, to allow someone to carry out business at the property or to sublet the flat
Change provisions surrounding ground rent
There is an error in the original lease

Legal Advice On Varying A Lease

If you have been offered a deed of variation to change your lease, you should speak to an expert property solicitor before agreeing to the alterations. Similarly, if you wish to make changes yourself, you are advised to ask a solicitor to draft and register the deed of variation to ensure that it is legally effective and that it has been correctly worded.

A property solicitor will also be able to advise you of the implications of agreeing to a deed of variation and check that the alterations are in your best interests.

If the property is subject to a mortgage, the lender will also need to approve the variation and give their consent. This will need to be dealt with by your solicitor.

The other party will also need to approve the deed and execute it. If you are the leaseholder, the other party is the freeholder. They are likely to refer the matter to their solicitor for advice before signing.

How Much Does A Deed Of Variation Cost?

The cost of a deed of variation will depend on how complex the situation is and how much work is required by your solicitor.

We can match you with a solicitor with the right level of experience so that you will not pay for more expertise than you need. They will be able to provide you with an estimate of the costs at the outset so that you know from the start how much the work is likely to cost.

They will also be able to advise you of any other potential costs such as valuation fees, Land Registry fees and whether you will be required to pay the landlord’s legal costs.

Contact local deed of variation solicitors

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Tenants In Common And Care Home Fees – Everything You Need To Know

Care home fees can be much higher than many people expect. Understandably, this means there is often a desire to minimise those costs. The way owning property as tenants in common and care home fees works can be a very beneficial interaction to understand.

Because if you own property as joint tenants, it can create problems when your local authority calculates your care home fees. The most prominent of these is that you may essentially be required to sell your home to cover the fees.

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This makes it important to explore the best way to own property if you want to ensure the care home fees you have to pay are fair and affordable. Let’s walk through how this could work:

The Two Ways To Own Property – Jointly Or Tenants In Common

There are two ways to own property in the UK – as joint tenants or as tenants in common.

Joint tenants own a property equally. They have a 50% share each and, among other features of this arrangement, have no say in what happens to that share. They cannot leave it to someone else in their will, for example. The surviving tenant will always inherit full ownership.

Tenants in common, by contrast, own specific shares of a property. These can be unequal and they can be changed during the course of ownership. They can also be left to beneficiaries other than the surviving partner in a will.

These and other differences between being tenants in common and joint tenants have a large impact when it comes to how your capital is assessed for care home fees.

What Happens With Jointly Owned Property And Care Home Fees?

Your local authority will carry out means testing (an assessment of your finances, including your assets such as property, savings, and income) to determine how much of your care home costs they will cover. You may receive:

Full funding – if your total capital is valued below £14 250 in England (£18 000 in Scotland and £50 000 in Wales) your care home costs will be fully covered.
No funding – if your total capital is valued above £23 250 in England (£28 750 in Scotland and £50 000 in Wales) you will be required to self-fund your care home costs.
Partial funding – if your total capital is valued between those figures in England and Scotland, you will qualify for partial funding.

Jointly owned property may or may not be assessed as part of your means testing for care home fees depending on the specifics of your living situation.

Means Testing For Care Home Fees – Is Jointly Owned Property Always Included?

Jointly owned property is not always included in a means test for care home fees. The common examples are:

Property still occupied by your partner – if the other joint tenant of the property still lives in your home, it will not be included in the means test.
Property still occupied by separated or divorced partner – the property will be included in the means test. The only exception is if they are caring for your child under 18 or a disabled relative or one over 60 years of age also living in the property.
Partner separated and no longer living in property – the property will be included in the means test. If you’ve paid off your mortgage, your local authority will assess based on half of the property’s value.
It’s a temporary situation or you need home care – if you are entering a care home for a short period or need home care, your property will not be included in the means test. This is covered by something called the “disregard period” that lasts for 12 weeks after you enter a care home.

Can I Gift My Home To My Children To Avoid Care Home Fees?

Many people imagine that gifting their property to their children may be a way to avoid inheritance tax or it being assessed as part of the means testing for care home fees.

Unfortunately, this approach often falls afoul of what is known as “deliberate deprivation of assets”. This is essentially when your local authority recognises you have deliberately tried to reduce your assets to pay lower fees and does something in order to balance it.

Should I Change From Jointly Owned To Tenants In Common To Protect My Share From Care Home Fees?

Owning property as joint tenants is popular with couples as it feels like a natural way to proceed at the start of what will hopefully be a happy life together.

As touched on above though, being joint tenants means the surviving tenant will automatically inherit full ownership of the property if one tenant passes away. If the survivor then needs to go into care, the full value of the property will be assessed as part of the means test.

A better solution can be to change from jointly owned to tenants in common. This allows each tenant to leave their share to someone else (and, often better, to a trust) in their will. This can enable the surviving tenant to continue living in the property for life and only be assessed for half the value if they need to go into care later.

Of course, major decisions like this should never be made without specialist legal advice. Tenants in common can be a smart way to make care home fees much fairer, but it’s always a good idea to talk to an expert first.

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What Are The Disadvantages Of Tenants In Common?

Tenants in common is one of the ways that many people in the UK choose to buy property together. It’s often perceived to be a better solution than being joint tenants, but it’s not perfect. So, what are the disadvantages of tenants in common?

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Let’s take a look at this popular method of joint property ownership and see why you might or might not want to choose another method:

What is the difference between joint tenants and tenants in common?

“Joint tenants” or “tenants in common” are the two ways that you can own property with another person or other people in most of the UK (Scotland has its own slightly different system).

The easiest way to think about these two very similar-sounding terms is this:

Joint tenants own it all together – this common choice for couples entering a relationship together means you both own the entire property.
Tenants in common own individual shares – this popular choice for couples, partners, and even close friends and family members buying together clearly sets out (usually as percentages) who owns how much of a property.

What are the disadvantages of tenants in common?

There are some situations where owning property as tenants in common makes a lot of sense. This is especially true if the people who want to become owners of a property are not married or tied together in a similarly close way.

However, there are also many reasons why being tenants in common might not be the best choice for you:

1) Joint Tenancy Is Simpler

As tenants in common, you can set out precise percentages and even further details of who owns how much of a property. In some situations, this can be a big advantage.

For example, picture a couple who want to buy a home together but have very different incomes. Perhaps one has a better income but one has large savings. In this instance, as tenants in common, they can decide what is fair between them. If the situation changes, as tenants in common, that couple can also alter the details of their split.

This is all very flexible. But it’s not always very simple. As joint tenants though, you instead own the entire property together. You don’t need to work out what a fair percentage is or change it later on. You both own the property together.

As joint tenants, were the relationship to end before one of you passed away, you still have options. You could sell your share to the other person, have them buy you out, or you might both move out and sell the property to gain 50% of the sale price each.

In summary, for all the precise definition and potentially increased fairness that tenants in common offers property ownership, it also carries a certain weight in terms of complexity.

2) The Will Defines What Happens When A Tenant In Common Dies

One of the advantages of tenants in common is usually held to be that you can decide what happens to your share of the property when you pass away.

You can’t do this as a joint tenant. As a joint tenant, the surviving tenant would inherit full ownership of the property because of something called the “Right of Survivorship”.

That said, the fact that tenants in common can choose what happens to their share of the property by laying it out in their will isn’t always a benefit. It’s easy to picture why this might be.

For instance, imagine a happily married couple who are tenants in common. When one of them passes away unexpectedly, their will says that their share of the property should pass to a child from a previous marriage. This child might be a virtual stranger to the surviving partner.

In circumstances like these, a large potential for family disputes is created by being tenants in common. The solution is usually to draw up your will in consultation with a specialist will solicitor who can talk you through these challenges. You should also make sure your tenants in common do the same.

Changing From Joint Tenants To Tenants In Common

As people’s lives and circumstances change, it’s not uncommon for them to want to change the method through which they own property. Most legal experts will tell you that regularly reviewing the way you hold property – or at the very least thinking about it every now and again – is a very good idea.

As a freshly married couple, becoming joint tenants of a property might feel natural and affirming. Later, situations can change. Changing how you own property to reflect that can offer more protection. However, it’s important to understand the advantages and the disadvantages of becoming tenants in common before you make alterations.

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Can I Sign My House Over To My Daughter In The UK?

Can I sign my house over to my daughter in the UK? Yes, you can sign your house over to your daughter in the UK. Many people gift their home or other property they own to their children. You might want to minimise Inheritance Tax or help get them onto the property ladder.

Yet the process isn’t always easy. There are also alternatives to the most common method of gifting – not to mention potential downsides of signing over your house to your daughter or son in full.

To be connected to a specialist solicitor near to where you live, please either call us now on 0845 1391399 or complete a Free Online Enquiry.

Here is a thorough grounding in the rules surrounding transferring ownership of your house to your children:

Can I Transfer Ownership Of My House To My Daughter In The UK?

In the UK you can indeed transfer ownership of your house to any of your children. The most popular way to do this is by the legal process of “gifting”. There are a few reasons why you might want to do this:

Give them a rung on the property ladder – most young people these days cannot afford to buy property of any kind without some form of assistance from their parents.
Minimise Inheritance Tax – Inheritance Tax applies to assets valued over £325 000 (or £650 000 for couples) and starts at a rate of 40%. Gifting property to your daughter or son is a potential way to minimise this tax. This is because property tends to be the most valuable asset a person owns.

How Does Gifting Property To My Daughter Minimise Inheritance Tax?

Gifting your entire house to your daughter is known as a “Transfer by Way of Deed of Gift”. This can minimise – and in some cases completely eliminate – the amount of Inheritance Tax due.

However, this is not unconditional. If you continue to derive any benefit from the property (the most common example is continuing to live in it), it is likely any mitigation of Inheritance Tax will be either minimal or zero. This means you will normally need to:

Pay rent or not live in the property – you cannot live in the property without paying rent in line with the average local rate. Not paying rent cancels the exemption from Inheritance Tax.
Live for 3-7 years or more – a “gift” takes a certain period to come into effect. Inheritance Tax due only begins to be reduced starting three years after you’ve gifted it. Every year after that up to seven years, the amount due is reduced. This is called “tapered relief”.
Sell it for the going market rate – you also can’t try to sell your house to any of your children at a reduced rate. Or rather, you can. But any minimisation of Inheritance Tax is likely to be offset by the difference in market rate and the price they paid.

The above stipulation that you are no longer the primary householder of a home you’ve gifted is an important one. The rules relating to it are known as GROB (Gift with Reservation of Benefit).

Make no mistake, these rules can be quite complex. If you are planning to do this, it is a very good idea to speak to a specialist solicitor to get legal advice before you proceed.

Can I Sign My House Over To My Daughter And Still Live In It?

Yes. As we’ve seen, many parents like to sign their houses over to their daughter or son and still live in it. Yet, as we’ve also touched on, there are significant limitations governing the way you can do this if you want to derive any benefits.

Plus, if you are doing this to minimise care home fees, your local council may judge you are doing what is called “a deliberate deprivation of assets” and still take the property into account when setting your fee level.

Can I Put My House In My Children’s Name To Avoid Inheritance Tax?

Yes, you can gift your house to your children in order to minimise or avoid Inheritance Tax. However, those regulations regarding the need to live for another seven years to completely negate the need to pay the tax and not derive any benefit from the gift remain in place.

As an alternative to gifting in full, you might want to sign your house over to your daughter by transferring equity or gifting half (so at least half of the value is not subject to Inheritance Tax) and splitting the bills.

Considerations And Risks When Gifting Property To Your Children

As well as those specific rules and regulations, it is important to bear in mind that there are certain considerations and risks of gifting property to your children:

No rights – you are no longer the legal homeowner and no longer have any rights to the property. If you were to have any serious disagreement, they would be allowed to evict you (hopefully this would never happen, but it has been known to).
Subject to settlement – if your child was to be part of a divorce battle, for example, the house might be sold as part of the settlement.
Financial costs – if you are transferring equity, the person receiving the equity might still have to pay Stamp Duty or Capital Gains Tax.

All in all, the complexity of signing your house over to your daughter or son makes consulting a specialist solicitor before you start a vital step in the process.

Need To Find Just The Right Legal Expert To Discuss Signing Your House Over To A Family Member?

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To be connected to a specialist solicitor near to where you live, please either call us now on 0845 1391399 or complete a Free Online Enquiry.