Social Housing v Wills and Probate – Q & A 

Social Housing practitioners will unfortunately be familiar with the difficult situation of a tenant passing away during their tenancy. It can be a sensitive time for the tenant’s family who will no doubt have lots of questions. Such questions will need to be answered and the correct legal steps will need to be taken if somebody applies to succeed the tenancy, or if vacant possession is sought. 

We invited Robert Lee, Head of Wills & Probate at MSB to answer a few short questions to assist: 

 

Question

What happens to a tenant’s belongings, finances, and anything else owned when they pass away? Is there any difference if they leave a will or do not leave a will? 

ANSWER: 

The answer to this question will depend on whether the tenant has a Will or not: 

Will 

The tenant’s Will appoints the Executor (or Executors) who will legally be able to do deal with the estate. The Executor’s role is to ensure that all the assets of the tenant are brought into the estate, all the debts are paid, and then the remaining assets are distributed in accordance with the Will.  

There is no Will 

If the tenant passed away without leaving a Will, their estate will be governed in accordance with the Rules of Intestacy. These are set rules that look at the specific family tree of the tenant as to who is entitled to be the Administrator of the estate, and also who will be the beneficiaries.   

The Government website has a helpful guide as to who can be the Administrator of the estate and who would be the beneficiaries: 

https://www.gov.uk/inherits-someone-dies-without-will 

The Administrator’s role is the same as the Executor’s role above for dealing with the estate.  

In both cases, the Executor and Administrator may have to apply for the Grant of Representation from the Probate Registry to be able to deal with the estate administration properly.  

There is a misconception that the tenant’s appointed ‘next of kin’ can deal with their estate once they have died. This is not correct as it would be the Executor or Administrator who are entitled to deal with the estate.  

Question

How do I know who the correct person to speak to will be on behalf of the deceased tenant and what documents will I need to ask for? 

ANSWER: 

The Grant of Representation is the document that shows that the Probate Registry has provided the legal authority to the person named to deal with the administration of the estate.  

The Grant document is called a Grant of Probate when there is a Will, and it is called a Grant of Letters of Administration when there is no Will.  

The general term for the person(s) who is appointed to deal with the estate is called the Personal Representative of the estate.  This includes both the Executor when there is a Will, and the Administrator when there is no Will.  

A Grant of Representation may not be required to be obtained for all tenants that pass away as the requirement is dependent on the value of the tenant’s assets. If a Grant is not required, there is  information that you can request from the person who can deal with the estate. This includes confirmation that there is or is not a Will, and confirmation that the person is either the named executor, or the person/one of the persons who can deal with the estate under the Rules of Intestacy.  

Question

What happens to the tenancy? 

ANSWER: 

A tenancy does not automatically end when a tenant dies.  Either the landlord or the person who is looking after the affairs of the former tenant can end the tenancy through a Notice to Quit giving 4 weeks’ notice or an agreed surrender.  

Question

If someone applies to succeed the tenancy what rights do they have? 

ANSWER: 

The rights will depend on their relationship to the former tenant, and what rights are contained in statute or the tenancy agreement. A tenancy can usually only be succeeded to once.  It is important to consider the type of tenancy the former tenant had and the terms and conditions within that agreement.  

Question

How do I recover possession of the property if I need to? 

ANSWER: 

If there is no one with the right to succeed to the tenancy, it can be ended by a valid Notice to Quit.  The Notice to Quit would need to be delivered to the Property and served on the Public Trustee.  Once the Notice to Quit has expired, a possession proceeding can be issued to regain possession of the Property.