FAQs Following The Death Of A Property Owner

The Transfer of land following death is regulated by the Land Registration Act 2002

When a person dies and they own land that will be inherited by someone else, it is usually necessary to register the change of ownership at the Land Registry. A solicitor will do this for you and if you would like a quote for this please either:

Call us on 0845 060 33 55 or 01638 565 318

Or click on the QUOTE button on this web-site and select the Transfer of Equity option, inserting £0 as the consideration. ·

Or e mail us at customerservice@cms-uk.co.uk. and we shall be pleased to answer any queries you may have.

If a solicitor has been employed to deal with Grant of Probate or Letters of Administration it is not necessary to use the same solicitor to transfer the property. It is often much more cost effective and efficient to use a specialist Conveyancer to deal with this aspect of the transfer of property. All CMS solicitors are fully qualified to deal with this type of land transfer.

The Deceased will usually have Title Deeds for any land that they owned. If there is no mortgage on the property they may keep the Title Deeds at home or they may be held for safe keeping with a bank or a solicitor.

If you are not sure whether the deceased owned property or land you may check this with the Land Registry. You should be aware that a fee is payable for this service. You will find their contact details in our useful links section below. As Personal Representative of the deceased, you can find out this information by making a search in the Index of Proprietors’ Names.

If you feel that you need to carry out this search, particularly if you think that the deceased may have owned a number of properties, you may contact the Land Registry and they will explain the procedure you need to follow. Please be aware that there is a fee to search the Index of Proprietors’ Names.

If the land or property is already registered with the Land Registry then the deeds will consist of a Charge Certificate if the property is mortgaged or if there is no mortgage the deeds will consist of a Land Certificate.

If the deceased has owned the property for a long time, and there have been no changes, then the land may not be registered with the Land Registry in which case the title deeds will consist of a collection of deeds and documents usually Conveyances, Legal Charges, Assents etc. and will include the deed which conveyed the property to the deceased.

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 any Beneficiary of the Will of the Deceased
• Transfer the property to the Executor of the Will of the Deceased as Trustee
• Transfer the property to someone else in their capacity as Personal Representatives
• Discharge a mortgage if the Deceased was the lender

A. Property held as ‘Joint Tenants’

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).

B. Property held as ‘Tenants in Common’

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. See 2. above.

If 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 – see 2. above. 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.

Personal Representatives may apply to become the registered owners of a property. This option could be used 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, 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 CMS solicitor 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 AS3 – assent of part of one or more registered titles;

Form TR1 – transfer of the whole of one or more registered titles;

Form TP1 – transfer of part 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 CMS solicitor to deal with the Transfer or Assent of the property they will check with the Land Registry whether the property is registered and if necessary will carry out a search of the Index Map for you.

If the property is registered, 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.

If you have appointed a CMS solicitor 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.

MortgagedLand: 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.

If you have appointed a CMS solicitor to deal with the Transfer/Assent they will advise you whether there are any Notices/Cautions/Restrictions or Mortgages on the property and advise you how to deal with them.

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 land, 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 0135for 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

· Email customersupport@landregistry.gsi.gov.uk or Telephone Customer Support on 0844 892 1111

You will find below an explanation of the various legal terms used:

• Assent- this is the deed often used to transfer property by the Personal Representatives of a deceased landowner to legally transfer property to the person entitled to it. An Assent is usually supported by the grant of probate or letters of administration.
• Administrator/Administratrix- this is the term used for the Personal Representative of a person who has died without leaving a valid will.
• Beneficiaries- this is the term used for the persons named by the Deceased in their Will to inherit property or goods.
• Charge Certificate – this is the document produced by the Land Registry to evidence legal ownership of a mortgage property.
• Executor/Executrix- this is the term used to describe the Personal Representative of a person who has died and has left a valid will.
• Land Certificate – this is the document produced by the Land Registry to evidence legal ownership of an unmortgaged property.
• Land Registry – this is the Government office that deals with the registration of all property in England and Wales.
• Letters of administration- this is the document that is used when the Deceased has not left a valid Will. This document appoints an Administrator to deal with the Deceased’s estate.
• Letters de bonis non administrandis – If the original Administrator has died without leaving a valid Will then this document is needed to appoint a new administrator to deal with the Deceased’s estate.
• Official Copy of the Register – this is a document produced by the Land Registry to provide an up to date view of the current property register and will include details of ownership, restrictions on the property and any legal charges or mortgages.
• Personal representative- this is the term used to describe either the Executor of a valid Will or the Administrator where there is no valid Will.
• Probate – this is the document, issued by the Probate office which legally appoints an Executor.
• Title Deeds – Either a bundle of documents consisting of Conveyances, Mortgages, Legal Charges, Assents or a Land or Charge Certificate which prove the ownership of the property.
• Transfer – the legal deed used to Transfer ownership of property.
• Trustee – a person who is appointed to hold property on in trust on behalf of another person.
• Will – this is the Legal Document expressing the wishes of the Deceased in relation to their property.