Overreaching

Hello I updated the Land Registry when my ex partner died so I am the sole legal owner of a property but it still has a Form A restriction on it. I need to sell the property. But my ex died intestate. Can I use the overreaching principle to sell the property if no one is administering his estate? Do I need to wait for probate so his beneficiaries can be confirmed/paid? I cannot find a solicitor who knows the answer. If I cannot overreach without probate/administration, on what legal basis can I apply to court to sell the property? His next of kin WILL NOT administer the estate.

Hello Eilidh - I am sorry to read of your loss. When a joint legal owner dies the legal ownership passes to the surviving owner to deal with. The legal ownership does not form part of the deceased's estate so whether he was intestate or not does not impact on the legal ownership with regards any sale. 

I assume from your asking that you are not the sole legal and beneficial owner and as such to overreach the form A restriction and allow the sale/purchase to complete you would usually appoint someone else to act with you as a co-trustee and together sell/transfer the property. Our PG 21 section 6 explains how you can deal with the transfer https://www.gov.uk/government/publications/using-transfer-forms-for-less-straightforward-transactions/practice-guide-21-using-our-forms-for-complex-and-more-unusual-transactions

If there is an issue with the beneficial ownerships and what happens to the purchase monies then that is where a court might come into play. But please do seek legal advice as to how to deal with the sale where a form A restriction is in play and an issue re the beneficial ownerships

Hello, the issue is that there was no will and so no defined beneficiaries. (We had believed the property was jointly owned, not owned in common, but it seems he gave the wrong instruction during initial purchase conveyancing). There is no one administering his estate. No lawyer has been able to give legal advice on what to do with the purchase moneys so I am stuck paying empty home premiums. Can the purchase moneys be held in trust for his beneficiaries so I can overreach? Is this what I need to ask a court?

Hello Eilidh - the property is jointly owned and it's important to separate the legal and beneficial ownerships to understand what happens next. There's nothing for a court to consider at this stage in my experience. As you are the sole legal owner you can sell but you need to appoint someone else to act with you and complete the transfer of legal ownership. That will then overreach the form A restriction and it will be automatically cancelled when the buyer is registered

What then happens to the purchase monies does not involve us but you do need to consider how your and your ex-partner's beneficial ownerships were split. They are what the form A restriction/tenants in common aspect relate to. If there are beneficiaries re his share then you can resolve it with them and pay their share for example but very much something to get legal advice on.

Appreciate that no lawyer has been able to advise you as yet but you may have to find one who deals specifically with death/wills for example. The key issue is how was the beneficial ownership split and was that formalised through any formal agreement for example? If there's nothing formal in place then I imagine it would be seen as a 50/50 split but again something to confirm with a legal rep. From a sale/purchase perspective you can sell/transfer as explained and then deal with the monetary split as appropriate. I suspect you would only end up going to court if you and his beneficiaries disagreed on the split for example