When someone passes away, their home will be the most valuable item left in their Estate. What happens to the property depends on how the deceased owned it and what the will state should happen (if there is one).
If the deceased did not leave a will, then what happens to the house is usually decided by the beneficiaries of the Estate.
Is the property registered at the land registry?
If the legal title for the home has been registered with the Land Registry, then the title will be obtainable from the Land Registry website.
This will show how the deceased owned the property. If the legal title is not registered, then no title document will be held by the Land Registry, and you should try to locate the original Title Deeds.
How was the property owned?
In England and Wales, the legal ownership of a house can take different forms, depending on whether it is owned by the deceased on their own or owned jointly with another person.
Joint ownership – joint tenants
There are two ways a property can be owned jointly with another person. The simplest form is where the property was held as joint tenants with somebody else. This will often be the deceased’s spouse or civil partner.
In these circumstances, neither person owns an identifiable share of the property. Therefore, like a joint bank account, the ownership of this property passes directly to the surviving owner upon death.
A grant of probate is not required for this. For example, if the title for the house was registered with the Land Registry, then a ‘death of a joint partner’ form can be completed to update the property title to show just the name of the surviving owner.
If the house was not registered, an original death certificate should be stored with the title deeds for the property.
Joint ownership – tenants in common
Another form of legal joint ownership is for a house to be held as tenants in common. In this case, each owner has a specific share in the value of the property that belongs to them. Often this is half-and-half but can be disproportionate.
Holding a share in property as tenants in common is quite a complex arrangement. Usually where this is the case, the deceased would have also left a will that states what is to happen with their share of the property. If they have not left a will, then their share of the property would form part of their Estate, to be passed on in line with inheritance laws called the rules of intestacy.
It is important to note with property held as tenants in common, although the deceased’s Estate may include a share of the property, if the other owner named in the title deeds is still alive, they have legal rights to the property.
Only they can decide if the property is to be sold or if a new legal owner is to be added to the property title.
The final form of ownership is the Sole Tenant, where the deceased person was the only house owner.
They will have passed away, leaving the house unoccupied. Special care should be taken here to ensure that the property remains insured, and any active insurance policy is not invalidated by the property being left unoccupied.
If there is a Will
What should happen to the house depends on whether the deceased left a will and if this has any directions as to what should be done with the house.
The will may state that the house is to be left as a specific gift to one or more of the beneficiaries.
The house legally passes to the beneficiaries through an ‘assent’ process. The grant of probate needs to be obtained before an assent can be completed.
If the deceased did not leave any specific instructions in their will, then what should be done with the house is up to the executor/s of the Estate and the beneficiaries.
They can deal with the property in the same way as if there was no will (aside from the rules of intestacy), as outlined below.
If there is no Will
If there is no will, then intestacy rules will come into play. Often the house will be sold, and the sale profits will be divided between the beneficiaries in line with the rest of the deceased’s Estate.
The house can be put on the market, and a sale agreed upon, but a grant of probate must be obtained before the legal process of selling the property can be concluded.
Most estate agents will be aware of this requirement for selling properties belonging to the Estate of someone who has passed away.
Alternatively, one of the beneficiaries might want to receive the house as their inheritance. In such a case, this needs to be agreed upon with any other beneficiaries of the Estate.
The property’s value then counts towards the share of the estate the beneficiary was due to inherit.
When there is no will, the spouse or civil partner of the deceased has the right of first refusal to receive the house as their inheritance.