Q&As

A and B owned a property as beneficial tenants in common and A has died. Does B need to appoint a second trustee of the legal title of the property to overreach the beneficial interests of the beneficiaries of A's estate?

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Published on LexisPSL on 11/02/2020

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • A and B owned a property as beneficial tenants in common and A has died. Does B need to appoint a second trustee of the legal title of the property to overreach the beneficial interests of the beneficiaries of A's estate?

Following the death of A, the legal title in the property vests in B alone. B will continue to hold the property on a trust of land, as to a 50% beneficial interest for B and a 50% beneficial interest for the beneficiaries of A's estate.

The doctrine of overreaching enables purchasers in good faith for money or moneys worth to rely solely on the legal title. However, to overreach any beneficial interests behind the trust the buyer must pay the purchase money to at least two trustees or a trust corporation. Where the beneficial interests are overreached, the trust attaches to the proceeds of sale.

Where only one co-owner of land survives, it is useful to check:

  1. if it is necessary for the surviving co-owner to appoint a second trustee in order to overreach the beneficial interests under the trust, or

  2. if the buy

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