I have 3 executors who are waiting for a unique code from HMRC so that they can apply for probate with power reserved to a 4th.They would like to assent the beneficial interest in a property that has been specifically devised to a beneficiary now. i.e. before probate has been granted. Whilst after probate I believe we’d be covered by AEA 1925 s.8, the wording of that section refers very specifically to probate having been granted (with power reserved to a non-proving executor).
Can the three proving executors execute and assent of the beneficial interest before probate is granted? It doesn’t feel right to have the non-proving executor execute the assent and then not apply for the grant, but equally it feels wrong to describe the three executors who plan to take the grant as ‘proving executors’ when they have not even made the application.
If HMRC and HMCTS were operating to any kind of sensible timescale this wouldn’t be an issue, but with unique codes taking 5 weeks, probates 12 or more and a beneficiary who is keen to set their own 7 year clock running as soon as possible in the face of limited life expectancy, this is where we find ourselves.
On the basis that the executors have no legal title until probate is granted, I would be reluctant to purport to assent title to the beneficiary as it would not convey a “good” title.
I see no reason why the (proving) executors could not appropriate the property to the devisee before grant, provided they are satisfied the estate will be sufficient to meet all liabilities without recourse to the property, and complete the assent once the grant is issued. Any such appropriation would need to be subject to the will in question being proved.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
The delay by public bodies in carrying out their basic duties is subverting the implicit assumptions on which legislation is based. Probate delays are causing unnecessary liability to interest on overdue IHT.
I am contemplating making a gift of a jointly owned property from two owners into four. A DOT can be used but it will have to be registered on the TRS Lark within 90 days. Ideally a TR1 would be used but the last time I submitted one to implement a gift it took HMLR nearly 2 years to register it. If they take over 90 days I will be in technical default under TRS, albeit with one hopes a reasonable excuse, and if I do register it I have no idea what happens to it after the HMLR finger has been extracted. It will then become an excluded non-taxable trust.
Can it be removed from the register? If not it may need to be updated despite no longer needing to be registered and if it can be removed (HMRC might have no scruples about exercising a non-existent power) it might have to be re-registered if the trustees and beneficiaries cease to be co-terminous in future e.g. one co-owner gifts their share in lifetime or by Will to two or more persons.
Because I do not need to pay for professional assistance all this would only waste my own unpaid time.
While I don’t see why the executors couldn’t do it at their own risk, as a practical matter, it won’t be possible to apply for re-registration of the property in the beneficiary’s name until the probate comes through. It should still work for IHT, but the beneficiary’s donee would have to wait until everything comes through to apply to HMLR.