Probate and transferring land
Probate and transferring land

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Probate and transferring land
  • Legal interest in land
  • Equitable interest in land
  • Execution of the assent
  • Purchaser protection

Ordinarily, a transfer of land must be made by deed: Law of Property Act 1925, s 52(1). However, where:

  1. the estate of a deceased person includes a legal or equitable interest in freehold or leasehold land, and

  2. a third party is entitled to that interest (either as a trustee or as a beneficiary) under the deceased’s will or the rules of intestacy

the Administration of Estates Act 1925, s 36(1) (AEA 1925) allows the deceased’s personal representatives to vest that interest in the third party by way of an assent, which does not need to be made by deed.

An assent should only be made once it is clear that the interest is not required for the purposes of administering the deceased’s estate (ie to pay debts, taxes, funeral expenses or pecuniary legacies). If for some reason an assent is made and it subsequently transpires that the interest in question is needed for these purposes, the interest can be recovered: AEA 1925, s 36(9).

Once an executor has ‘cleared’ the estate by meeting the liabilities described above (Harvell), he becomes a trustee of the net residue. If that residue includes land, he must then make an assent in his favour (Re K