TR1 Form

We have a joint freehold on our property. As 4 flats we bought it ten years ago. We are in the proceed of selling our property, and all four of us have to sign the TR1 form. Unfortunately one of the freeholders has died, and her estate is being dealt with by a solicitor who is the executer of her will. We have been told we need to wait for deed of probate on her estate before we can complete the sale of our property. Is this correct? As we can't understand why it is holding up our sale and we may lose our buyer and property if this takes ages. Thanks Sally Sharp

3 Answers

This is a bit of a complicated situation to explain but you shouldn't have to wait. When two or more people own a property a "trust of land" is created. This means that the legal owners (the people named on the title deeds, in this case you and the other 3 freeholders) hold the property on trust for the beneficial owners (those entitled to the equity in the property). Generally the legal and beneficial owners will be the same people, for example a husband and wife will generally jointly hold the legal title on trust for each other.

There are two ways in which the beneficial interest can be held where the beneficiaries and the legal owners are the same person, tenants in common or joint tenants. With joint tenants, when one dies the whole of the legal and beneficial interest passes to the survivors. You however are probably tenants in common (you can tell because there will be a restriction on the freehold register preventing a disposition by a sole proprietor from being registered).

With tenants in common, the deceased's beneficial interest passes according to his will, or the rules of intestacy if he leaves no will, but his legal interest passes to the survivors. That's because according to the law the legal interest in land can only ever be held as joint tenants. So the three surviving "trustees" of the freehold title are now free to transfer the property. Even when probate is granted the executor cannot be a party to the transfer because only the deceased's beneficial interest, not the legal interest, will pass to him. All you need to produce along with a transfer signed by the three of you is the deceased's death certificate.

The three trustees (your buyer and the other two flat owners) will hold the freehold on trust for themselves and for the estate of the deceased, so as soon as the deceased's flat is sold they should do another transfer so as to include the buyer of the flat on the freehold title. This will discharge their duty as trustees.

Many thanks, the estate of the deceased freeholder is going to charity. She has no family. Will this make any difference? Will the executor have to sign. Sorry it's very complicated.

This shouldn't make any difference