Family haven’t bothered transferring dead parents’ house into their names

My mother and father-in-law made no will. There are six in the family and the family home was never legally put in their names. That was nine years ago and one sibling is living in the house since.

Two siblings are married and have families. If either of them died, will the wives get their share or will it all go to the living siblings? The fact that it was not put in all their names legally was because some siblings did not want to pay the fee to have it sorted. I would appreciate any advice.

Ms M. McK., email

This is nonsense. Regular readers will know well my views on the importance of making a will so that your assets go where you intended, but also so that you do not create unnecessary difficulties for family that you leave behind.

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In this case, obviously it’s far too late in the day to be worrying about that. Neither of your parents-in-law made a will.

Quite why your partner and their siblings would actively exacerbate that situation is beyond understanding. And all they are doing is making life even more difficult when they, in turn, pass on the property because there is now no clear title.

I’m not even sure how it was possible to get to this situation.

As your in-laws died without a will, their estates would have been dealt with under the rules on intestacy. Among other things, this means someone would have had to take out a letter of grant of administration. Normally this would be the next of kin. For the first death, that would likely be the spouse; in this case, when the last surviving parent died, it would have been one or more of the six children – or a solicitor, which in this case would have been the sensible approach.

Succession Act

The Succession Act 1965 sets down how intestate estates are dealt with. When the first of your partner's parents died, the spouse would have been entitled to the whole estate only where they had no children. Given that there are six children, the surviving spouse would have been entitled only to two-thirds of the estate, with the children sharing the balance.

I suspect this didn’t happen. It is possible, of course, that the one-third division could have been settled by distribution of cash or other assets outside the family home but, given the reluctance to spend relatively modest sums in sorting this mess out, I doubt it.

Obviously, if there had been a will, everything could legally have been left to the surviving spouse.

When the second of the parents died, their estate should have been divided equally between each of the six children. And part of the responsibilities of the person taking out the grant of letter of administration would have been to ensure that legal title of the property was properly transferred to the successors.

This is not a complicated procedure but it is one that requires a lawyer. This does not appear to have happened in this case. This means that whoever was handling the management of the estate did not properly carry out their role which could have implications for them down the line. When you agree to take on the responsibility for sorting out someone’s affairs, you are liable for failure to do so.

Regardless of all that, you now have the ludicrous position where six people jointly own a property which is in none of their names. One is actually living there, others have varying family arrangements. That the bone of contention paralysing the process is the fee involved is insane.

Transferring title

Formally transferring ownership of a property involves making an application to register title with one of either the Land Registry or Register of Deeds.

Even allowing for the cost of getting a solicitor to complete the exercise and the fees levied by the Property Registration Authority of Ireland, you are talking about significantly less than €2,000. In the context of the value of the property, and the potential for legal dispute down the line, this is a pittance.

And, while property transfers do ordinarily involve stamp duty of 1 per cent of the property value up to valuations of €1 million, that stamp duty is waived in cases of inheritance.

Going forward, I can only hope that the six siblings have each made a will. You ask specifically about the married siblings. Assuming they make a will, it will state whether their share of this property passes to their spouse or family, or whether it reverts to the other siblings.

If they don’t have a will, the Succession Act comes into play. In that event it will certainly not revert to their siblings.

In either case, the complicating issue for whoever has to sort out their affairs is proving their ownership in the first place so that it can be passed on. It can certainly be done but it will inevitably add cost at that stage and delay the process at what could be a difficult time.

In terms of general advice, I would urge the family to stop being silly and to put the very modest cost together to regularise the ownership of their parents’ home. If they cannot all agree to do so, it would make sense for one or more of them to take the cost upon themselves – for their own peace of mind if nothing else.

[ dcoyle@irishtimes.com ]