Death of surviving trustee - is grant of probate required to sell property

Trusts Discussion
1

Husband and wife entered into a declaration of trust in 1995 declaring a life interest for the survivor of them in their property and then varying percentages to family. The Proprietorship Register states they are joint legal owners with Form A restriction. H died and now W has died. The trust deed states that statute will apply re: appointing new trustees.

I understand that a PR will become legal owner of a property on the death of the survivor of joint legal owners. W’s will appoints a firm of solicitors as her executors with the wish that one partner acts. Will it be necessary for the solicitor to obtain a grant of probate as evidence of his legal power to dispose of the property and divide proceeds in accordance with the declaration of trust or is a grant unnecessary as it is not an estate asset, but a trust asset - if the latter, how does he prove he is a bare trustee able to dispose of a trust asset?

2

Either:

  • PR can appoint 2 trustees (which could include themselves I think) under s.36. I can’t see HMLR accepting the docs without a grant of probate as that is his evidence that he is the PR. I don’t think they would accept the will alone.
  • Vesting and related orders under s.41 and 44 of the Trustee Act 1925. Needs a Court application by an interested party (probably a beneficiary).
1 Like
3

Thank you Andrew, this confirms my thoughts.