Tenants in common after death

Please can someone confirm if a married couple (going through divorce) are tenants in common on a property and one of them dies (with a will leaving their estate to someone else who is not the ex wife), whether it is possible for the person to remove the deceased from the title deeds and go on to sell the property with the deceased's executor being left completely helpless?

Jenny - a property can be sold in the way you described but the TIC/will still have a part to play legally for example re the proceeds of sale.
In most TIC cases the register will include what's known as a form A/joint ownership restriction which then restricts a sole surviving owner from for example selling on their own. Not all TICs apply for such a restriction so the register is not definitive re how they held the property as TIC
The sole surviving owner can for example appoint someone else to act with them and together they can then transfer (sell). That someone else does not have to be for example the deceased's executor
As the legal ownership of the property did not form part of the deceased's estate their executor has no role to play in dealing (selling) the property.
As for being 'completely helpless' though that is not the case as the executor can still have a role to play re the purchase monies and the deceased's share. That's the deceased's share of the beneficial ownership which the TIC protects.
It's legal advice you now need to understand what happens re the purchase monies and how to get the deceased's share to then distribute as per the will for example

Thank you Adam.

So to confirm, it is not fraudulent to remove a deceased tenant in common from the title deeds when you are aware that the deceased has left a will and you are not in it?

Does this not apply from form DJP?

"This form is only for use on the death of a deceased joint proprietor where the legal estate vests in the survivor(s)."

In the case of an extremely unusual and manipulative surviving tenant, what is to stop them from selling the property for £50, just to spite an estranged family member, for example?

Many thanks.

Jenny - very sadly a death is factual so the register can be updated at any time to remove their name. 
The legal estate does vest in the surviving registered owner. The TIC aspect and wills for example relate to the deceased's beneficial ownership
If they sold at an undervalue the beneficial share still exists and the form A restriction (if registered) would remain on the register to protect the 'trust' created re the TIC. That's why you need legal advice to help you firstly recognise what that is, what it's worth and how to obtain it. That may require legal action 
We register the legal ownership and as posted that passes to the surviving joint owner after the death. That does not mean that any beneficial interests disappear or melt away but those interests are a legal matter and not something we then deal with or can advise you on

OK, thank you for the quick responses.

Jenny - I added a little more info to the post re this paragraph
If they sold at an undervalue the beneficial share still exists and the form A restriction (if registered) would remain on the register to protect the 'trust' created re the TIC. That's why you need legal advice to help you firstly recognise what that is, what it's worth and how to obtain it. That may require legal action 
Please do come back and share any legal advice you get re what to do in your circumstance. It's not a rare one but as we are not directly involved in wills/trusts for example your experience/understanding will be useful to other forum users in a similar position

Will do.

Sorry Adam,

Earlier you said the legal estate does vest in the surviving legal owner, but on this HMLR blog it says this below. Does this still only mean beneficial interest as it implies their share of the land:

https://hmlandregistry.blog.gov.uk/2016/08/16/legal-estates-beneficial-interests-whats-difference/

Tenants in common

Some people may not want their interest in the land to vest in the surviving tenant. If they decided to hold the land as tenants in common, on their death their share would vest in the beneficiaries under their will, for example, their children or relatives.

Thanks
 

Jenny - the legal ownership passes to the surviving joint owner, irrespective of whether TIC or not, for them to then deal with.
The TIC/trust/wills relate to the beneficial ownership/interest and as the details you have just posted confirm that interest vests in their beneficiaries.
The key consideration in such cases is how do you protect the beneficial interests and/or realise them, namely turn the legal ownership (the house and land) into beneficial shares (the £s and pence when sold or someone is 'bought out of their share') - you won't find any answers to that in HMKR guidance as we don't deal with that aspect. We deal with the legal ownership and that is updated re the death. If the property is then transferred/sold we update the register re the new legal ownership and if it's sold we don't then track or trace or tell the recipients what they have to then do with that money
Hope that helps a bit more but please do seek legal advice for the reasons explained

Hi Adam

By way of an update, the property has now proceeded to sale. Our solicitor has reminded the surviving joint owner of the Restriction on the property and also notified the estate agents. The owner is now threatening to remove the restriction so they can keep all the proceeds. I trust this won't be possible given the will, grant of probate etc. These have been supplied to Land Registry before but should we resupply all of this to ensure the restriction can't be removed?

Thanks

Hi Jenny - we don't register or deal with the will/probate in the way you might envisage. If the registered owner applies to cancel the form A restriction then they would need to provide supporting evidence to do so as follows

An application to cancel a Form A/joint ownership restriction must be made in Form RX3 together with evidence to show that the restriction is no longer required. If you are the registered owner, you can use form ST5 to supply the necessary evidence in support of your application.

There is no fee payable.

For further guidance please refer to Practice Guide 19: notice, restrictions and the protection of third party interests in the register. There is also a "YouTube" video How to complete RX3 which may assist you.

Please send the completed application to:

HM Land Registry address for applications.

Land registration is complex, designed to protect legal and financial interests in property. There can be significant consequences for any error. Please consider seeking legal representation. Before making an application without legal representation, It is important to consider the benefits of using a conveyancer.

The issue you actually have a is a legal one re the proceeds of sale/the purchase monies and what legal claim you have on same. We don't police such matters.
Do seek legal advice to clarify what your legal rights are and how to secure your beneficial share as appropriate.
If you need to be notified of any significant applications to update the title then you can use our free Property Alert service - Property Alert - GOV.UK