Q&As

If personal representatives exercise their power of appropriation over the deceased’s land, what formalities must be fulfilled?

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Produced in partnership with Oliver Auld of Charles Russell Speechlys LLP
Published on: 14 October 2020

This Q&A assumes that the power of appropriation will be exercised by personal representatives and not trustees.

By way of background, the process of appropriation is where a personal representative (PR) or a trustee uses a specific asset in the estate or trust fund, to meet in full or in part, a beneficiary’s entitlement or interest.

What is appropriation?

PRs have a power of appropriation under the common law over any part of the residuary estate (but not a fund) which may be exercised with the consent of the beneficiary, in or towards satisfaction of a vested legacy or a share of residue. This power allows PRs to deal with both real and personal property even if that property is subject to a trust for conversion. See Practice Note: Personal representatives and trustees—power of appropriation.

The powers of appropriation given to PRs is set out in section 41 of the Administration of Estates Act 1925 (AEA 1925) and provides

Oliver Auld
Oliver Auld

Oliver specialises in advising UK and international clients in relation to a wide range of contentious trust, probate and other private wealth disputes. He acts for a diverse range of high net-worth individuals, professional trustees and other fiduciaries, who are involved in the management of family wealth. He also acts for clients involved in sensitive and confidential disputes in the Court of Protection. Oliver's practice predominantly involves complex and multi-jurisdictional disputes in relation to inherited wealth and assets held in English and offshore family trusts. He advises clients on claims challenging the validity of wills and under the Inheritance (Provision for Family and Dependants) Act 1975 and is experienced in acting for a trustees and beneficiaries in a wide range of contested and uncontested court applications to resolve issues that have arisen in the administrations of trusts and estates. His recent reported cases include: ' Cowan v Foreman and others [2019] EWHC 349 (Fam) ' Right Hon Gloria Wesley, Dowager Countess Bathurst v Chantler and others [2018] EWHC 21 (Ch) ' Shearer v Kevin Neal Associates Limited (2017) ' Wooldridge v Wooldridge [2016] (Case No: 3CL1022132) Oliver was recognised as 'Next Generation Lawyer' by the Legal500 in 2017 and an 'Associate to Watch' by Chambers and Partners in 2018 in the field of contentious trust and probate.

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Jurisdiction(s):
United Kingdom
Key definition:
Personal representatives definition
What does Personal representatives mean?

In relation to a person who has died, this means (in the UK) persons responsible for administering the estate of the deceased.

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