Does claimant’s deceased mother’s home count as income/capital?

I have taken an enquiry from a 48 year old man who lives in his late mother’s house - she owned the house before she died 11 years ago. The claimant has continued to live in the house and has paid his mother’s mortgage from his ESA/DLA. This leaves him with very little money. He tells me that the estate can not be passed to him until the mortgage is paid off (is this correct?) and he does not wish to sell. There is more than £100K equity in the property.

He has been refused CTB on the grounds that the property counts as capital. Is this correct, given that he doesn’t own it (yet)?

He has asked if he could move to privately rented accommodation and claim HB? Again, this would only be possible if his mother’s house does not count as capital?

I keep going round in circles, so any thoughts would be very welcome.

Thanks!

Was there a will?
Is he the sole surviving child (or grandchild)?
Has anybody taken out probate/letters of administration? It is certainly true that the property cannot be put into his name other than by an assent from a duly-authorised executor or adminstrator. Probate is always essential for land.
Was the value below the inheritance tax threshold? Have all other debts been paid?
I am not aware of any authority for the proposition that it cannot be transferred to him subject to mortgage. Transfers - even sales - subject to mortgage are perfectly possible. The whole point of a mortgage is that it attaches to the property not to the debtor.
If he is actually beneficially entitled to the estate then the title to the property is eventually going to be transferred to him and thus would be his home and disregarded.

If no legal steps have been taken to get probate/letters of administration then he needs to see a solicitor (one who understands probate and land law). This sounds like do-it-yourself-never-mind-the-legal bits. I once had to sort out the legal title to a farm where the last conveyance was to the current (elderly) occupier’s grandfather in 1896. This looks like the same sort of problem.

The capital value of the property that the claimant occupies as his home is disregarded in any case.

I echo the earlier comments re probate etc.  Whiste small amounts may be given to beneficiaries without probate, there is no way that a house could be transferred in that way.

The property can be transferred once probate is granted and lenders are often only too willing for the mortgage to be transfered with it.

Thanks for your helpful replies, although this is a Scottish case where the law is different on settling an estate.

My thoughts are that as soon as he moves out of the property, it will count as capital as he could sell it at the point that he moves out (although he could claim HB while he is taking reasonable steps to sell). And yes, it should be disregarded while he continues to live there.

This of course implies that the ttile to the property is in such a state that he can in fact sell it. In English law at least, getting probate would be “reasonable steps”.