Probate and transferring land
Probate and transferring land

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

  • Probate and transferring land
  • Assent of a legal interest in land
  • Assent of an equitable interest in land
  • Execution of the assent
  • Purchaser protection

Ordinarily, a transfer of land must be made by deed. 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

section 36(1) of the Administration of Estates Act 1925 (AEA 1925) allows the deceased’s personal representatives to vest that interest in the third party by way of an assent.

An assent of a legal interest in land must:

  1. be in writing

  2. be signed by the personal representative(s)

  3. name the person in whose favour it is given

There is no requirement for it to be made by deed (unless covenants are being given—see below).

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 (other than to a purchaser of the legal estate) and it subsequently transpires that the interest in question is needed for these purposes, the interest can be recovered.

Once the personal representatives have ‘cleared’ the estate by meeting the liabilities described above, they may take on the role of trustees in respect of any asset

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