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If two parties co-own a freehold and one dies, can the sole surviving co-owner sell it’s share of the freehold while the deceased’s estate is going through probate?

This article will explore what happens to a freehold property when it is co-owned and one of the owners passes away. We are often asked what can be done in this situation, especially during the estate administration and probate application.

For the purposes of this article, we assume that the title to the freehold is registered land, being registered with the Land Registry, and that the ownership of the property is held as Tenants in Common.

Tenants in Common vs Joint Ownership

Tenants in Common is a form of ownership that is different to Joint Tenants. Joint Tenants would mean that if one of the owners passes away, the property would transfer automatically to the surviving tenant through the law of survivorship. With Tenants in Common, each party owns their shares separately and on the first death of the joint owners, it would pass through the deceased’s will or via the rules of intestacy if there is no will in place. The way a property is held impacts what happens when someone dies.

Not sure how your property is owned?

If you’re not sure how you own your property, we will help you to find the answer to this question, and the benefits of joint tenants versus a tenancy in common.

Estate Administration and Probate – Tenant in Common

If parties are Tenants in Common, the beneficial interest of the property is held by each party, but the legal estate is a separate consideration. The legal estate is held as joint tenants, and this has an impact on Probate and the administration of an estate as the legal estate forms part of the estate of the deceased, regardless of their size of share in the property.

The survivor is the sole owner of the legal estate but holds an equitable interest on a trust of land for themselves and those entitled under the estate of the deceased. This means that steps need to be taken in order to remove the deceased from the Register held by the Land Registry. This must be handled correctly to ensure that the survivor of the co-owners cannot dispose of the property without the order of the court and the sole survivor can appoint at least Trustee to hold the legal title.

Can I sell the property?

In following the correct procedure, it is possible for a property to be sold during the estate administration process. Please contact the team to discuss this situation or with any questions in relation to ownership of property and estate administration.

If you would like a chat to discuss further, please feel free to contact me for a free 30-minute consultation.

Sophie Campbell

01637 800 306

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