When a person passes away it is common that their loved ones must deal with their financial affairs.
Often this is done by their personal representatives which are the executors of the will (if there is one) or those appointed to deal with their estate if there is no will.
Sometimes this administration work includes dealing with a lease extension of a flat. Usually, it is possible to start a lease extension shortly after someone has passed away and this can either be done by their personal representatives or the beneficiaries who inherit the flat, once it has been registered in their name.
Prior to January 2025 we advised personal representatives not to transfer the flat from the deceased name into the beneficiaries name, because doing so would have "reset" the ownership clock and the beneficiaries would have then needed to wait two years before they could extend the lease. However, this "two year rule" no longer applies, so beneficiaries can extend the lease in their on right as soon as their ownership of the flat is registered at the Land Registry.
This article explains how to extend a lease when someone has died.
It is worth noting that this article has been mainly written for circumstances where a lease extension has not yet been started, rather than one where a lease extension is ongoing - if you've already started your lease extension, then read the whole article and specifically this section.
This article does not constitute legal advice and you should complete your own research or seek advice before relying on it.
Decided to go ahead with your lease extension?
Purchase Title Register
If you want to extend a lease on a flat when someone has died, the first thing you must do is purchase and read the Title Register. You need to check who is the registered owner of the property and how they owned it.
Please see an example below:
Understand Ownership Structure
Once you have purchased the title register you can ascertain how the lease can be extended.
Single Owner:
If there is a single owner, things are relatively straight forward.
Either the Personal Representatives can do a lease extension, or once probate has been granted the flat can be transferred into the name of the beneficiaries and they can do it.
Multiple Owners – “Tenants in Common”:
If there are two owners, then it is possible that they own the property as Tenants in Common. This is particularly common where a property is owned by friends or siblings, who might want to own shares of the property separately.
The property could be owned in equal shares (e.g., 50% each) or unequal shares (e.g., 60% / 20% / 20%).
You can usually tell that a property is owned as Tenants in Common if the following restriction in the Title Register is present. You should be able to get a categoric answer by asking a solicitor.
If the property is owned as Tenants in Common and one more of the owners has died, the deceased's Personal Representatives will need to engage with the lease extension process on their behalf in collaboration with the surviving owner(s).
Alternatively, the deceased can be removed from the Title Register and the beneficiaries added, before doing the lease extension.
Multiple Owners – “Joint Tenants”:
A common type of property ownership is Joint Ownership, which is essentially where both owners collectively own 100% of the property. This is particularly common between married couples.
In this case, if one of the owners dies then their ownership of the property automatically vests (which means becomes owned) by the surviving owner.
In this case, the surviving owner will usually not need to wait until probate is granted to start the lease extension – but they do have a decision to make before they start the process.
Option 1: Amend the Title Register before extending the lease
Usually where a Joint Tenant dies, the Land Registry will remove their name from the Title Register free of charge – although it can take a couple of months for the change to be made.
If you instruct us to complete our end-to-end lease extension service, our in-house firm of solicitors can usually do this when we start the process for you - and there won't be an additional charge. We will need a certified copy of the Death Certificate in order to do this.
The disadvantage of this approach is that it can sometimes delay starting the lease extension – because it will take time for the Land Registry to process the form.
The benefit of this approach is that you will know that the remaining owner will be listed on the Title Register as the sole owner of the property when the start the lease extension is started, and you know that the freeholder cannot be difficult. This is the option we recommend.
If you want to instruct us to do your lease extension please look at our service in more detail.
Option 2: Extend the lease without amending the Title Register
The second option is to start the lease extension before amending the Title Register and don’t update the title until the new lease is registered.
The advantage of doing this is that you save some admin and do not have to wait until the Land Registry updates the title register before starting the lease extension.
The disadvantage is that your freeholder may try to argue that the surviving owner does not have the right to extend the lease while the deceased tenant is listed on the title register – although it seems unlikely and they would be so heartless to take this position. In addition, the counter-argument to this is that the title automatically passes to the surviving owner on the passing of the other owner and we believe this to be correct. However, our experience is always that it is better to avoid a dispute than win one.
What about if we've already started the lease extension?
Up to this point, this guide is written as though you've not yet served a Section 42 Notice and started your lease extension.
If you've already served the Section 42 Notice and the process is already ongoing, then the situation is a little different.
If the flat is owned by two or more people as Joint Tenants then when one of the owners dies, the flat will automatically transfer into the ownership of the other person and so will the lease extension process. Provide your solicitor with a copy of the Death Certificate, which they will need to update the Land Registry and notify the freeholder. The lease extension process, however, will be able to continue without much issue or delay.
If the flat is owned by one person, or two or more people as Tenants in Common, then things are more difficult. While the process which has been started can continue, it will need the involvement of the Personal Representatives / Executors of the deceased owners.
You should let your solicitor know immediately and provide them with a copy of the Will, so they can see who the Executors are. Even though they'll be able to discuss matters in general terms with the Executors, the issue here is that it usually takes at lease 4+ months after someone has died to get probate. Probate is needed to allow the Executors to sign the lease extension document. You should apply for probate as soon as you are able to do so.
This delay causes an issue because the deadlines in the lease extension process will still need to be met, even if one of the owners has died. To buy more time, your solicitor can make a protective application to Tribunal or County Court (depending on where you are in the lease extension process) to stop the lease extension expiring. An application to County Court is usually about £1,000, but an application to tribunal is cheaper.
At the same time you need to seek probate as a quickly as possible, to ensure that you can continue the lease extension as soon as you are able.
Finally, where a Section 42 Notice has been served, do not transfer the flat out of the deceased's name into the name of the beneficiaries. Unless you explicitly assign the lease extension process as part of transfer, the lease extension process will be voided and the beneficiaries will have to restart the process.
Conclusion
The article above should provide a starting point on how to extend a lease when someone has passed away.
If you wish to instruct us to manage the lease extension process, please get in touch.
Have specific questions?
Join our Facebook Group to ask our expert team.
