Can I move into a house that is my inheritence before Probate?

[Bookworm]

My mother is in her late 90s and has left her whole estate to me.I am
an executor and have EPA. I would like to move into her smaller house
when she does die, (which I hope is not soon). Can I move into her
house and sell my present house before probate? Do I have to purchase
it 'for value' even though the proceeds will accrue to me?

[Percy Picacity]

You don't have to purchase it at all in these circumstances, and there
is no-one with any status to stop you moving in. But you do have to
account to HMRC for its true value, and, if the value is such that
taxes can only be paid by selling it, you might have to sell. This
does not seem likely if you have the proceeds of the sale of a larger
house.

--

Percy Picacity

[Peter Crosland]

The EPA ceases at the point of death so it is irrelevant. You don't have
to purchase the property. Assuming you are the sole beneficiary then it
is yours from the moment she dies particularly as you are an executor.
If there was any Inheritance Tax to pay then you would need to pay that
before you get the probate grant but assuming you have sold you existing
house then this may not be a problem.


--
Regards Peter Crosland

[Norman Wells]

Peter Crosland wrote:
> On 22/03/2013 16:35, Bookworm wrote:
>> My mother is in her late 90s and has left her whole estate to me.I am
>> an executor and have EPA. I would like to move into her smaller
>> house when she does die, (which I hope is not soon). Can I move into
>> her house and sell my present house before probate? Do I have to
>> purchase it 'for value' even though the proceeds will accrue to me?
>
> The EPA ceases at the point of death so it is irrelevant. You don't
> have to purchase the property. Assuming you are the sole beneficiary
> then it is yours from the moment she dies particularly as you are an
> executor.

Strictly, I don't think it does become his at that time. It belongs to
the estate. When an executor is appointed by the grant of Probate it
becomes the executor's property which he holds in trust for the intended
beneficiary. In this case, since the executor will be the beneficiary,
it effectively becomes his legally on grant of Probate. In practice,
however, since he intends to take up the position of executor, no-one
else has any right to evict him, and he can occupy it immediately after
death if that's what he wants to do.

[John Briggs]

The executor may owe rent to the beneficiary...
--
John Briggs

[Tim Jackson]

On Fri, 22 Mar 2013 23:40:01 +0000, John Briggs wrote...

Errm... wouldn't the beneficiary be the tenant who would owe rent to the
executor? Who would then have to account for it to the beneficiary?

Probably best to set the rent at a nice low round number, so that the
taxman doesn't get any of it. Zero is a round number....

--
Tim Jackson
ne...@timjackson.invalid
(Change '.invalid' to '.plus.com' to reply direct)

[Pelican]

"Norman Wells" <h...@unseen.ac.am> wrote in message
news:Yw43t.221293$VO5.1...@fx20.fr7...

> Peter Crosland wrote:
>> On 22/03/2013 16:35, Bookworm wrote:
>>> My mother is in her late 90s and has left her whole estate to me.I am
>>> an executor and have EPA. I would like to move into her smaller
>>> house when she does die, (which I hope is not soon). Can I move into
>>> her house and sell my present house before probate? Do I have to
>>> purchase it 'for value' even though the proceeds will accrue to me?
>>
>> The EPA ceases at the point of death so it is irrelevant. You don't
>> have to purchase the property. Assuming you are the sole beneficiary
>> then it is yours from the moment she dies particularly as you are an
>> executor.
>
> Strictly, I don't think it does become his at that time. It belongs to
> the estate.

There is no such thing in law as "the estate".

> When an executor is appointed by the grant of Probate it becomes the
> executor's property which he holds in trust for the intended beneficiary.

That is incorrect. An executor is not a trustee. An executor may become a
trustee, but the status of executor or trustee are not the same.

> In this case, since the executor will be the beneficiary, it effectively
> becomes his legally on grant of Probate.

Effectively, it becomes his on the testator's death. There is no-one in the
world who has a better claim in law.

[Pelican]

"August West" <aug...@kororaa.com> wrote in message
news:87li9e2...@news2.kororaa.com...

>
> The entity calling itself Pelican wrote:
>>
>> "Norman Wells" <h...@unseen.ac.am> wrote in message
>> news:Yw43t.221293$VO5.1...@fx20.fr7...
>>

>>> When an executor is appointed by the grant of Probate it becomes
>>> the executor's property which he holds in trust for the intended
>>> beneficiary.
>>
>> That is incorrect. An executor is not a trustee. An executor may
>> become a trustee, but the status of executor or trustee are not the
>> same.
>

> Maybe for English law, I don't know; but they are in Scots law.

Do you mean that the duties and obligations of an executor and a trustee are
the same in Scots law? I rather doubt it. What an executor does in winding
up the affairs of a deceased person is not the same as what a trustee does
in administering trust property. There can come a moment in time when the
estate is administered and the trustee miraculously becomes a trustee, but
until then, they are not the same.

[Francis Davey]

Le samedi 23 mars 2013 00:30:12 UTC, Pelican a écrit :
>
> There is no such thing in law as "the estate".
>

Certainly in the law of England and Wales, at the moment of death all the property of the deceased (that doesn't pass by survivorship of course - that is a special case) vests in the executor or executors and it becomes their property. Of course if you have no grant of probate you take a risk in assuming that it vested in any particular person (eg there may have been a later will) but that doesn't stop the vesting.

So there is no separate person called "the estate" to whom the property belongs.

>
>
> That is incorrect. An executor is not a trustee. An executor may become a
>
> trustee, but the status of executor or trustee are not the same.

Absolutely! This is a standard rookie mistake and one that at least one of the staff at university during my diploma often made. A key difference is that legatees under the will have no beneficial interest in the asset. The executor may have fiduciary duties and there are powers - under probate law - to compel them to do things such as administer the estate but there is no trust.

This comes up at least once a year on this newsgroup.

Francis

[steve robinson]

Taxman could ignore that if its deamed that the actions are designed to
aviod paying the tax

[steve robinson]

Subject to the estate being liquid

[Tim Jackson]

On Sat, 23 Mar 2013 10:40:01 +0000, steve robinson wrote...

>
> Tim Jackson wrote:
>
> > Errm... wouldn't the beneficiary be the tenant who would owe rent to
> > the executor? Who would then have to account for it to the
> > beneficiary?
> >
> > Probably best to set the rent at a nice low round number, so that the
> > taxman doesn't get any of it. Zero is a round number....
>
> Taxman could ignore that if its deamed that the actions are designed to
> aviod paying the tax

Damn! ;-)

[GB]

On 23/03/2013 09:35, Francis Davey wrote:
> Le samedi 23 mars 2013 00:30:12 UTC, Pelican a écrit :
>>
>> There is no such thing in law as "the estate".
>>
>
> Certainly in the law of England and Wales, at the moment of death all
> the property of the deceased (that doesn't pass by survivorship of
> course - that is a special case) vests in the executor or executors
> and it becomes their property. Of course if you have no grant of
> probate you take a risk in assuming that it vested in any particular
> person (eg there may have been a later will) but that doesn't stop
> the vesting.
>

How does this work if the executors cannot be determined for any of a
number of reasons, eg the will cannot be found, the executors decline to
act, they are disqualified from acting, etc etc etc?

So, at the moment of death, in whom does the property vest?

[steve robinson]

If no will can be found then it falls to letters of administration

If executors decline to act they can be held to account for any losses
creditors incur

If those named as executors refuse to accept the role others can take
thier place with the approval of the courts no action can be bought
against a person named as an executor if they refuse the role

If no one comes forward either a creditor wll start action to recover
the debt against the estate and it will fall to the state to deal with
it

It eventually ends up in the treasury if no one claims the estate

[steve robinson]

Tim Jackson wrote:

> On Sat, 23 Mar 2013 10:40:01 +0000, steve robinson wrote...
> >
> > Tim Jackson wrote:
> >
> > > Errm... wouldn't the beneficiary be the tenant who would owe rent
> > > to the executor? Who would then have to account for it to the
> > > beneficiary?
> > >
> > > Probably best to set the rent at a nice low round number, so that
> > > the taxman doesn't get any of it. Zero is a round number....
> >
> > Taxman could ignore that if its deamed that the actions are
> > designed to aviod paying the tax
>
> Damn! ;-)

I personally think the taxman is wonderful, he recently credited me
£0.04 pence against my corperation tax bill !!!!!!!!!!!!

[Chris R]

>
>
> "GB" wrote in message news:514d9cd0$0$1100$5b6a...@news.zen.co.uk...

> On 23/03/2013 09:35, Francis Davey wrote:

> > Le samedi 23 mars 2013 00:30:12 UTC, Pelican a �crit :

> >>
> >> There is no such thing in law as "the estate".
> >>
> > Certainly in the law of England and Wales, at the moment of death all
> > the property of the deceased (that doesn't pass by survivorship of
> > course - that is a special case) vests in the executor or executors
> > and it becomes their property. Of course if you have no grant of
> > probate you take a risk in assuming that it vested in any particular
> > person (eg there may have been a later will) but that doesn't stop
> > the vesting.
>
> How does this work if the executors cannot be determined for any of a
> number of reasons, eg the will cannot be found, the executors decline to
> act, they are disqualified from acting, etc etc etc?
>
> So, at the moment of death, in whom does the property vest?
>

In the executors. You just don't necessarily know who they are until the
court tells you.
--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[Norman Wells]

Pelican wrote:
> "Norman Wells" <h...@unseen.ac.am> wrote in message
> news:Yw43t.221293$VO5.1...@fx20.fr7...
>> Peter Crosland wrote:
>>> On 22/03/2013 16:35, Bookworm wrote:
>>>> My mother is in her late 90s and has left her whole estate to me.I
>>>> am an executor and have EPA. I would like to move into her smaller
>>>> house when she does die, (which I hope is not soon). Can I move
>>>> into her house and sell my present house before probate? Do I have
>>>> to purchase it 'for value' even though the proceeds will accrue to
>>>> me?
>>>
>>> The EPA ceases at the point of death so it is irrelevant. You don't
>>> have to purchase the property. Assuming you are the sole beneficiary
>>> then it is yours from the moment she dies particularly as you are an
>>> executor.
>>
>> Strictly, I don't think it does become his at that time. It belongs
>> to the estate.
>
> There is no such thing in law as "the estate".

I think you'll find there is.

>> When an executor is appointed by the grant of Probate it becomes the
>> executor's property which he holds in trust for the intended
>> beneficiary.
>
> That is incorrect. An executor is not a trustee. An executor may
> become a trustee, but the status of executor or trustee are not the
> same.

If there is a distinction in law or in practice it is tiny. The
executor is under a duty to look after the property in the estate as his
own, on behalf of the intended beneficiary. In that sense he is in fact
holding it in trust for the intended beneficiary.

>> In this case, since the executor will be the beneficiary, it
>> effectively becomes his legally on grant of Probate.
>
> Effectively, it becomes his on the testator's death. There is no-one
> in the world who has a better claim in law.

Not so. He is not an executor until Probate has been granted in his
favour. If he renounces his right to be the executor, which is a common
occurrence, or is refused ability to act by the court, he has no right
to do anything as regards the deceased's property even though he is the
intended beneficiary.

Even if he wishes to be appointed as the executor, he cannot for example
sell the deceased's house, which is a fundamental right of ownership,
until grant of probate. That's when it effectively becomes his, not
before.

[Norman Wells]

Francis Davey wrote:
> Le samedi 23 mars 2013 00:30:12 UTC, Pelican a écrit :
>>
>> There is no such thing in law as "the estate".
>
> Certainly in the law of England and Wales, at the moment of death all
> the property of the deceased (that doesn't pass by survivorship of
> course - that is a special case) vests in the executor or executors
> and it becomes their property.

If I am named as executor and sole beneficiary of an estate, why then
can I not sell whatever property I choose immediately on the testator's
death? After all, you say it's my property, and a fundamental right of
property ownership is the freedom to dispose of it. Why do I have to
wait until Probate is granted? In what sense is it my property, as you
say, if I don't have any of the rights of ownership that go with it?

That's why I say it only becomes the executor's property when Probate
has been granted. Until then, it is property of the estate, with no-one
entitled to do anything with it.

> Of course if you have no grant of
> probate you take a risk in assuming that it vested in any particular
> person (eg there may have been a later will) but that doesn't stop
> the vesting.

You appear to be saying that, in the case outlined above, I _do_ have
the right to sell or dispose of whatever property I choose immediately
on the testator's death. What then is the point of Probate?

> So there is no separate person called "the estate" to whom the
> property belongs.

I'm not sure about that. An estate can certainly be sued, at least in
common parlance. I would have thought therefore that it must be a legal
entity, and can therefore own property.

[Tim Jackson]

On Sat, 23 Mar 2013 10:45:01 +0000, Norman Wells wrote...

> If I am named as executor and sole beneficiary of an estate, why then
> can I not sell whatever property I choose immediately on the testator's
> death? After all, you say it's my property, and a fundamental right of
> property ownership is the freedom to dispose of it.

I suspect that you could sell it if you could persuade someone to buy
it. But in the case of something like a house, there would then be a
problem if for some reason you didn't get probate as you anticipated.
The purchaser would only get good title if there was no subsequent
problem with your probate.

In practice, therefore, any well-advised purchaser would refuse to buy
the house until after probate had been granted.

But to take an actual example, when my sister died a few years ago, I
was the executor and sole beneficiary. Before probate was granted, I
chose to give her car to the daughter of one of her friends. This gift
was perfectly legal.

I did accept that there was a slight risk. Had a later will turned up,
appointing a different executor, or bequeathing the car to someone else,
then I might have been on the wrong end of a legal dispute. But I knew
my sister well enough to be confident there wouldn't be a problem.

[Chris R]

>
>
> "Norman Wells" wrote in message news:lKe3t.201994$0K4....@fx25.fr7...

Norman, almost everything you have said in this post is wrong. As correcting
it would just mean contradicting you and repeating what has been said
before, I'll leave it there.

[Chris R]

> "Norman Wells" wrote in message news:PDf3t.95580$Og1....@fx10.fr7...
> Francis Davey wrote:
> > Le samedi 23 mars 2013 00:30:12 UTC, Pelican a �crit :

> >>
> >> There is no such thing in law as "the estate".
> >
> > Certainly in the law of England and Wales, at the moment of death all
> > the property of the deceased (that doesn't pass by survivorship of
> > course - that is a special case) vests in the executor or executors
> > and it becomes their property.
>
> If I am named as executor and sole beneficiary of an estate, why then can
> I not sell whatever property I choose immediately on the testator's death?
> After all, you say it's my property,

No, he said that it vests in the executor or executors. You can't be sure
that's you until probate is granted.

> and a fundamental right of property ownership is the freedom to dispose of
> it. Why do I have to wait until Probate is granted?

You and everyone else has to wait and find out whether you are indeed the
executor.

> In what sense is it my property, as you say, if I don't have any of the
> rights of ownership that go with it?

In the sense that the law requires property to have an owner at all times.
If someone dies, their property must vest in someone. The law does not
necessarily require that you can identify who that person is at any given
time.

>
> That's why I say it only becomes the executor's property when Probate has
> been granted. Until then, it is property of the estate, with no-one
> entitled to do anything with it.

Perhaps you would care to cite some authority for that, as you are
contradicting people who certainly know what they are talking about.

>
> > Of course if you have no grant of
> > probate you take a risk in assuming that it vested in any particular
> > person (eg there may have been a later will) but that doesn't stop
> > the vesting.
>
> You appear to be saying that, in the case outlined above, I _do_ have the
> right to sell or dispose of whatever property I choose immediately on the
> testator's death. What then is the point of Probate?

To establish that the will is the valid last will and to establish with
certainty who the executor is.

>
> > So there is no separate person called "the estate" to whom the
> > property belongs.
>
> I'm not sure about that. An estate can certainly be sued, at least in
> common parlance.

Might not your common parlance be shorthand for something else? Such as
suing the executors?

> I would have thought therefore that it must be a legal entity, and can
> therefore own property.

It might be better to look up the law rather than make statements based on
your surmises.

[Stuart A. Bronstein]

"steve robinson" <st...@colevalleyinteriors.co.uk> wrote:
> Tim Jackson wrote:
>> John Briggs wrote...

>> >
>> > The executor may owe rent to the beneficiary...
>>
>> Errm... wouldn't the beneficiary be the tenant who would owe
>> rent to the executor? Who would then have to account for it to
>> the beneficiary?
>>
>> Probably best to set the rent at a nice low round number, so
>> that the taxman doesn't get any of it. Zero is a round
>> number....
>
> Taxman could ignore that if its deamed that the actions are
> designed to aviod paying the tax

One of the obligations of the executor is to make sure the property
is taken care of and doesn't lose value. Particularly if he is also
a beneficiary, it seems to me reasonable for the executor to live in
the property during administration (assuming it doesn't go on too
long) as a way to accomplish that purpose. Doing that he would be
residing there as a part of his job, and shouldn't, as a result, owe
rent.

--
Stu
http://DownToEarthLawyer.com

[Norman Wells]

Tim Jackson wrote:
> On Sat, 23 Mar 2013 10:45:01 +0000, Norman Wells wrote...
>
>> If I am named as executor and sole beneficiary of an estate, why then
>> can I not sell whatever property I choose immediately on the
>> testator's death? After all, you say it's my property, and a
>> fundamental right of property ownership is the freedom to dispose of
>> it.
>
> I suspect that you could sell it if you could persuade someone to buy
> it. But in the case of something like a house, there would then be a
> problem if for some reason you didn't get probate as you anticipated.
> The purchaser would only get good title if there was no subsequent
> problem with your probate.
>
> In practice, therefore, any well-advised purchaser would refuse to buy
> the house until after probate had been granted.

Indeed. That's because you were _not_ its owner at that time but only
its potential owner. You would have no ability to transfer its
ownership until the grant of probate because you wouldn't have title or
actually own it until then.

> But to take an actual example, when my sister died a few years ago, I
> was the executor and sole beneficiary. Before probate was granted, I
> chose to give her car to the daughter of one of her friends. This
> gift was perfectly legal.

So you say, but how and when did you transfer its legal ownership? I
bet not until Probate had been granted even if you passed over the car
into her physical possession before that.

And on what basis did she insure herself to drive it? She did not
actually own it at that time, and you had no authority to transfer it
into her name or authorise her to drive it. It would have remained in
all the records and on all the databases as your sister's property.

How are you so sure that what you did was 'perfectly legal'?

> I did accept that there was a slight risk. Had a later will turned
> up, appointing a different executor, or bequeathing the car to
> someone else, then I might have been on the wrong end of a legal
> dispute. But I knew my sister well enough to be confident there
> wouldn't be a problem.

I don't think that was much of a risk for the reasons you give. But I'm
not convinced, for the reasons I give, that it was actually legal.

[Stuart A. Bronstein]

"steve robinson" <st...@colevalleyinteriors.co.uk> wrote:
> Tim Jackson wrote:

>> steve robinson wrote...

>> >
>> > Taxman could ignore that if its deamed that the actions are
>> > designed to aviod paying the tax
>>
>> Damn! ;-)
>
> I personally think the taxman is wonderful, he recently credited
> me �0.04 pence against my corperation tax bill !!!!!!!!!!!!

Great! Are you buying dinner?

--
Stu
http://DownToEarthLawyer.com

[Norman Wells]

Then perhaps you'd explain, for my and others' benefit, just what you
think the effect of the grant of Probate is, and why it needs to be
obtained.

[Stuart A. Bronstein]

August West <aug...@kororaa.com> wrote:

> Scots law and English law are very different, in many ways.

I was always fascinated by the fact (or at least as I was told) that
Scots law doesn't recognize trespass to real property as an offence
or a tort.

--
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

"Norman Wells" <h...@unseen.ac.am> wrote:

> Chris R wrote:

>> Norman, almost everything you have said in this post is wrong.
>> As correcting it would just mean contradicting you and
>> repeating what has been said before, I'll leave it there.
>
> Then perhaps you'd explain, for my and others' benefit, just
> what you think the effect of the grant of Probate is, and why it
> needs to be obtained.

It makes that ownership official so that people can rely on it. I
suppose you could say it's like Schr�dinger's cat - it is either dead
or alive, but no one can be certain until the box is opened.

--
Stu
http://DownToEarthLawyer.com

[Norman Wells]

Stuart A. Bronstein wrote:
> "Norman Wells" <h...@unseen.ac.am> wrote:
>> Chris R wrote:
>
>>> Norman, almost everything you have said in this post is wrong.
>>> As correcting it would just mean contradicting you and
>>> repeating what has been said before, I'll leave it there.
>>
>> Then perhaps you'd explain, for my and others' benefit, just
>> what you think the effect of the grant of Probate is, and why it
>> needs to be obtained.
>
> It makes that ownership official so that people can rely on it. I

> suppose you could say it's like Schrödinger's cat - it is either dead

> or alive, but no one can be certain until the box is opened.

So, before Probate is granted, I either own it or I don't. But I can't
do anything with it, like dispose of it, even if I do own it. How is
that any different from not owning it?

[Tim Jackson]

On Sat, 23 Mar 2013 14:05:02 +0000, Norman Wells wrote...

>
> Indeed. That's because you were _not_ its owner at that time but only
> its potential owner. You would have no ability to transfer its
> ownership until the grant of probate because you wouldn't have title or
> actually own it until then.

So who is the owner, Norman? It's not the deceased, he/she is dead.
It's not the beneficiaries, not until the executors pass the property on
to them. (Unless the beneficiaries are also the executors.)

As others have said, the owner is the executor, from the time of death
onwards. But until probate is granted, you can't be 100% certain who
the executors are.

As the owner, the executor has the ability to transfer the property, if
the purchaser accepts the risk. The risk is that they are gambling that
you are indeed the executor. There's no proof of that unless and until
the court grants the probate. But once granted, the probate shows that
you have been the executor all along, and had the ability all along.

There's also a risk for the executor in transferring the property early,
because if the probate is not granted and eveything goes pear-shaped,
the purchaser and/or the beneficiaries could sue him.

>
> > But to take an actual example, when my sister died a few years ago, I
> > was the executor and sole beneficiary. Before probate was granted, I
> > chose to give her car to the daughter of one of her friends. This
> > gift was perfectly legal.
>
> So you say, but how and when did you transfer its legal ownership?

When I gave her father the keys and allowed him to drive the car away.

Take an analogy. Suppose you buy a car from a man you meet in a pub.
If he is in fact the legal owner, then the legal title to the car passes
to you when he gives you the keys and allows you to drive away. You are
taking a risk that the man is not in fact the legal owner - he might
have stolen the car, or there might be outstanding HP. But in the
absence of such problems, you are the new legal owner from the time you
take possession of the car.

So it is with an executor. As executor, he is the legal owner from the
time of death, and can transfer the car to you. You are gambling that
he is indeed the executor. You run the risk that the probate may not be
granted to him, in which case it will turn out that he wasn't the legal
owner after all. But in the absence of such problems, you are the new
legal owner from the time you take possession of the car.

[GB]

On 23/03/2013 12:40, Chris R wrote:
>>
>>
>> "GB" wrote in message news:514d9cd0$0$1100$5b6a...@news.zen.co.uk...
>> On 23/03/2013 09:35, Francis Davey wrote:

>>> Le samedi 23 mars 2013 00:30:12 UTC, Pelican a écrit :
>>>>
>>>> There is no such thing in law as "the estate".
>>>>
>>> Certainly in the law of England and Wales, at the moment of death all
>>> the property of the deceased (that doesn't pass by survivorship of
>>> course - that is a special case) vests in the executor or executors
>>> and it becomes their property. Of course if you have no grant of
>>> probate you take a risk in assuming that it vested in any particular
>>> person (eg there may have been a later will) but that doesn't stop
>>> the vesting.
>>
>> How does this work if the executors cannot be determined for any of a
>> number of reasons, eg the will cannot be found, the executors decline to
>> act, they are disqualified from acting, etc etc etc?
>>
>> So, at the moment of death, in whom does the property vest?
>>
> In the executors. You just don't necessarily know who they are until the
> court tells you.

So, 6 months after death, Mr Bloggs is appointed executor by the court.
This has retrospective effect back to the moment of death? That could
have interesting consequences if, some time between death and the court
appointment, some 3rd party has fallen down an open man hole, or similar
mishap has occurred.

[steve robinson]

Before probate you wont own it thats the whole point of probate to
determin who owns what within the framework of the will balanced
against the debts the state owes.

[steve robinson]

This depends if the estate can meet its obligations to other
beneficaries and creditors.

A

[Norman Wells]

Chris R wrote:
>> "Norman Wells" wrote in message
>> news:PDf3t.95580$Og1....@fx10.fr7... Francis Davey wrote:

>>> Le samedi 23 mars 2013 00:30:12 UTC, Pelican a écrit :
>>>>
>>>> There is no such thing in law as "the estate".
>>>
>>> Certainly in the law of England and Wales, at the moment of death
>>> all the property of the deceased (that doesn't pass by survivorship
>>> of course - that is a special case) vests in the executor or
>>> executors and it becomes their property.
>>
>> If I am named as executor and sole beneficiary of an estate, why
>> then can I not sell whatever property I choose immediately on the
>> testator's death? After all, you say it's my property,
>
> No, he said that it vests in the executor or executors. You can't be
> sure that's you until probate is granted.
>
>> and a fundamental right of property ownership is the freedom to
>> dispose of it. Why do I have to wait until Probate is granted?
>
> You and everyone else has to wait and find out whether you are indeed
> the executor.

It seems what you're sayinghere is what I've been saying all along.
It's not mine until probate has been granted. If it was my property
before, I'd have had rights that are inherent in ownership, including
the right to dispose of it as I chose.

>> In what sense is it my property, as you say, if I don't have any of
>> the rights of ownership that go with it?
>
> In the sense that the law requires property to have an owner at all
> times. If someone dies, their property must vest in someone. The law
> does not necessarily require that you can identify who that person is
> at any given time.
>>
>> That's why I say it only becomes the executor's property when
>> Probate has been granted. Until then, it is property of the estate,
>> with no-one entitled to do anything with it.
>
> Perhaps you would care to cite some authority for that, as you are
> contradicting people who certainly know what they are talking about.

Perhaps you would for your position.

You see, you seem to be arguing now that the property becomes mine
immediately on the death of the testator by virtue of my being named in
the Will as executor and sole beneficiary. Were I to decline to apply
for Probate perhaps some weeks later, as I would be perfectly entitled
to do, I would presumably then have to transfer the ownership of the
property I had acquired in this way to whoever does eventually act as
the executor, otherwise there would be no chain of title to entitle him
to proceed to distribute the estate. Yet that does not happen. I can
simply decline to act at all as executor and that is the end of my
involvement in the matter. What has happened to my ownership of the
property which I have not passed on?

If you're saying that I didn't ever own it and that it was always the
property of whoever acts ultimately as executor, even if not named in
the Will, that seems absurd and totally unreasonable. Ownership carries
responsibilities as well as rights, and a person surely has the right to
know what responsibilities he's taking on at the time he takes them on,
not just be lumbered with them in retrospect.

Do please now answer the question posed by the OP. He is named as
executor and sole beneficiary in his mother's Will. Can he legitimately
move into her house immediately on her death? If you say he can, by
what right can he do that if he subsequently decides that he doesn't
want to act as executor? If you say he can't, who has the right to stop
him?

>>> Of course if you have no grant of
>>> probate you take a risk in assuming that it vested in any particular
>>> person (eg there may have been a later will) but that doesn't stop
>>> the vesting.
>>
>> You appear to be saying that, in the case outlined above, I _do_
>> have the right to sell or dispose of whatever property I choose
>> immediately on the testator's death. What then is the point of
>> Probate?
>
> To establish that the will is the valid last will and to establish
> with certainty who the executor is.

Why is that necessary if I can dispose of whatever property I choose
immediately on the testator's death, which is surely what I can do if I
own it? It's only if I don't own it that I can't.

>>> So there is no separate person called "the estate" to whom the
>>> property belongs.
>>
>> I'm not sure about that. An estate can certainly be sued, at least
>> in common parlance.
>
> Might not your common parlance be shorthand for something else? Such
> as suing the executors?
>
>> I would have thought therefore that it must be a legal entity, and
>> can therefore own property.
>
> It might be better to look up the law rather than make statements
> based on your surmises.

Got anything that establishes the contrary?

[Pelican]

"August West" <aug...@kororaa.com> wrote in message
news:87hak21...@news2.kororaa.com...
>
> The entity calling itself Pelican wrote:
>>
>> "August West" <aug...@kororaa.com> wrote in message
>> news:87li9e2...@news2.kororaa.com...
>>>
>>> The entity calling itself Pelican wrote:
>>>>
>>>> "Norman Wells" <h...@unseen.ac.am> wrote in message
>>>> news:Yw43t.221293$VO5.1...@fx20.fr7...

>>>>
>>>>> When an executor is appointed by the grant of Probate it becomes
>>>>> the executor's property which he holds in trust for the intended
>>>>> beneficiary.
>>>>
>>>> That is incorrect. An executor is not a trustee. An executor may
>>>> become a trustee, but the status of executor or trustee are not the
>>>> same.
>>>

>>> Maybe for English law, I don't know; but they are in Scots law.
>>
>> Do you mean that the duties and obligations of an executor and a
>> trustee are the same in Scots law? I rather doubt it.
>
> I refer you to the Executors (Scotland) Act 1900, s.2:
>
> "2 Executors nominate to have the powers and privileges of trustees.
>
> All executors nominate shall, unless the contrary be expressly
> provided in the trust deed, have the whole powers, privileges, and
> immunities, and be subject to all the limitations and restrictions,
> which from time to time gratuitous trustees have, or are subject to,
> under the Trusts (Scotland) Acts, 1861 to 1898, or this Act, or any
> Act amending the same, and otherwise under the statute and common law
> of Scotland."
>
> The "trust deed" refered to are such testementary writings as exist.

>
> Scots law and English law are very different, in many ways.

Indeed. I claim no expertise in Scots law. But that provision does not
seems to me to equate the status of an executor with that of a trustee in
Scotland, or go anywhere near to saying that where an executor (in Scotland)

[Chris R]

>
>
> "GB" wrote in message news:514de2f2$0$1142$5b6a...@news.zen.co.uk...

> On 23/03/2013 12:40, Chris R wrote:
> >>
> >>
> >> "GB" wrote in message news:514d9cd0$0$1100$5b6a...@news.zen.co.uk...
> >> On 23/03/2013 09:35, Francis Davey wrote:

> >>> Le samedi 23 mars 2013 00:30:12 UTC, Pelican a �crit :

> >>>>
> >>>> There is no such thing in law as "the estate".
> >>>>
> >>> Certainly in the law of England and Wales, at the moment of death all
> >>> the property of the deceased (that doesn't pass by survivorship of
> >>> course - that is a special case) vests in the executor or executors
> >>> and it becomes their property. Of course if you have no grant of
> >>> probate you take a risk in assuming that it vested in any particular
> >>> person (eg there may have been a later will) but that doesn't stop
> >>> the vesting.
> >>
> >> How does this work if the executors cannot be determined for any of a
> >> number of reasons, eg the will cannot be found, the executors decline
> >> to
> >> act, they are disqualified from acting, etc etc etc?
> >>
> >> So, at the moment of death, in whom does the property vest?
> >>
> > In the executors. You just don't necessarily know who they are until the
> > court tells you.
>
> So, 6 months after death, Mr Bloggs is appointed executor by the court.
> This has retrospective effect back to the moment of death? That could
> have interesting consequences if, some time between death and the court
> appointment, some 3rd party has fallen down an open man hole, or similar
> mishap has occurred.
>

Why?
--
Chris R

[Norman Wells]

Tim Jackson wrote:
> On Sat, 23 Mar 2013 14:05:02 +0000, Norman Wells wrote...
>>
>> Indeed. That's because you were _not_ its owner at that time but
>> only its potential owner. You would have no ability to transfer its
>> ownership until the grant of probate because you wouldn't have title
>> or actually own it until then.
>
> So who is the owner, Norman? It's not the deceased, he/she is dead.
> It's not the beneficiaries, not until the executors pass the property
> on to them. (Unless the beneficiaries are also the executors.)

I think the owner initially is 'the estate'. When probate is granted it
is the executor.

> As others have said, the owner is the executor, from the time of death
> onwards. But until probate is granted, you can't be 100% certain who
> the executors are.
>
> As the owner, the executor has the ability to transfer the property,
> if the purchaser accepts the risk.

Not legally, because the potential executor does not have title until
Probate is granted in his favour. Otherwise, what happens later if he
decides he doesn't want to act as executor? Was he the owner at the
time you say he had the ability to transfer the property, or not?

> The risk is that they are
> gambling that you are indeed the executor. There's no proof of that
> unless and until the court grants the probate. But once granted, the
> probate shows that you have been the executor all along, and had the
> ability all along.

And if he doesn't get himself appointed under Probate as the executor,
he clearly never was the owner, which you said he was from the time of
death, was he?

> There's also a risk for the executor in transferring the property
> early, because if the probate is not granted and eveything goes
> pear-shaped, the purchaser and/or the beneficiaries could sue him.

As with any person acting fraudulently and attempting to sell sell stuff
he doesn't own.

In fact he cannot transfer legal ownership until he has Probate. It's
that which gives him the authority to do so. Before that, he has
absolutely no authority to do anything as regards the deceased's
property, including giving it away.

>>> But to take an actual example, when my sister died a few years ago,
>>> I was the executor and sole beneficiary. Before probate was
>>> granted, I chose to give her car to the daughter of one of her
>>> friends. This gift was perfectly legal.
>>
>> So you say, but how and when did you transfer its legal ownership?
>
> When I gave her father the keys and allowed him to drive the car away.

No, that's just passing it into his possession. Transferring legal
ownership is different, and just won't be entertained unless you have
Probate. That's why you have to send copies of it to all the authorites
and banks etc before they will let you deal in the deceased's
possessions. Before that, you don't own any of them, so you can't.
They'd let you if you could.

> Take an analogy. Suppose you buy a car from a man you meet in a pub.
> If he is in fact the legal owner, then the legal title to the car
> passes to you when he gives you the keys and allows you to drive
> away. You are taking a risk that the man is not in fact the legal
> owner - he might have stolen the car, or there might be outstanding
> HP. But in the absence of such problems, you are the new legal owner
> from the time you take possession of the car.

That's right. The legal owner of something has the rights associated
with ownership which include being legally entitled to dispose of it.

> So it is with an executor. As executor, he is the legal owner from
> the time of death, and can transfer the car to you.

But he doesn't know at that time that he will be the executor. He could
just say he doesn't want to act in that capacity. He could be denied by
the court. Probate may be granted to someone else. Was he then the
legal owner from the time of death as you say, with the legal right to
transfer it?

> You are gambling
> that he is indeed the executor. You run the risk that the probate
> may not be granted to him, in which case it will turn out that he
> wasn't the legal owner after all. But in the absence of such
> problems, you are the new legal owner from the time you take
> possession of the car.

At the time of sale, I say the executor named in the Will has no legal
title to the possessions of the deceased, cannot therefore validly
transfer legal ownership, and is acting fraudulently if he tries.

It's all very simple if the position is as I say it is, namely that 'the
estate' owns the property from the time of death to the grant of
Probate, whereupon the executor named in the grant owns the property and
has legal title to dispose of it. Before Probate no-one has any legal
right to deal with the deceased's possessions at all. They are in a
state of limbo.

[Norman Wells]

steve robinson wrote:
> Norman Wells wrote:
>
>> Stuart A. Bronstein wrote:
>>> "Norman Wells" <h...@unseen.ac.am> wrote:
>>>> Chris R wrote:
>>>
>>>>> Norman, almost everything you have said in this post is wrong.
>>>>> As correcting it would just mean contradicting you and
>>>>> repeating what has been said before, I'll leave it there.
>>>>
>>>> Then perhaps you'd explain, for my and others' benefit, just
>>>> what you think the effect of the grant of Probate is, and why it
>>>> needs to be obtained.
>>>
>>> It makes that ownership official so that people can rely on it. I
>>> suppose you could say it's like Schrödinger's cat - it is either
>>> dead or alive, but no one can be certain until the box is opened.
>>
>> So, before Probate is granted, I either own it or I don't. But I
>> can't do anything with it, like dispose of it, even if I do own it.
>> How is that any different from not owning it?
>
> Before probate you wont own it

Well, that's what I've been saying all along. It's others who, for some
reason not yet properly explained, don't agree.

> thats the whole point of probate to
> determin who owns what within the framework of the will balanced
> against the debts the state owes

No it isn't. The grant of Probate is actually just the court
appointment of an executor to collect in and distribute the estate in
accordance with the Will, ie administer it by doing what you describe.

[GB]

On 23/03/2013 18:15, Chris R wrote:

>>>>> Certainly in the law of England and Wales, at the moment of death all

>>>>> the property of the deceased .... vests in the executor or executors

>>>>> and it becomes their property.

>>>> How does this work if the executors cannot be determined for any of a
>>>> number of reasons,

>>>>

>>>> So, at the moment of death, in whom does the property vest?
>>>>
>>> In the executors. You just don't necessarily know who they are until the
>>> court tells you.
>>
>> So, 6 months after death, Mr Bloggs is appointed executor by the court.
>> This has retrospective effect back to the moment of death? That could
>> have interesting consequences if, some time between death and the court
>> appointment, some 3rd party has fallen down an open man hole, or similar
>> mishap has occurred.
>>

> Why?

So, if the court appoints Mr Bloggs six months after the original death,
but with retrospective effect, Mr Bloggs becomes liable for 3rd party
liability claims he knew nothing about and had no power to prevent.

[Tim Jackson]

On Sat, 23 Mar 2013 18:10:02 +0000, Norman Wells wrote...

> I think the owner initially is 'the estate'. When probate is granted it
> is the executor.

And who owns 'the estate' in the meantime?

The 'estate' isn't a person (natural or legal). It's just the sum total
of all the deceased's assets, less his/her liabilites.

[Norman Wells]

Tim Jackson wrote:
> On Sat, 23 Mar 2013 18:10:02 +0000, Norman Wells wrote...
>
>> I think the owner initially is 'the estate'. When probate is
>> granted it is the executor.
>
> And who owns 'the estate' in the meantime?

No-one owns it until Probate is granted, though the courts have ultimate
jurisdiction over it

> The 'estate' isn't a person (natural or legal). It's just the sum
> total of all the deceased's assets, less his/her liabilites.

As far as I am aware, 'the estate' can be sued and can sue others. That
being so, it must have a legal identity and can therefore own property.

[Francis Davey]

Le samedi 23 mars 2013 20:55:02 UTC, Norman Wells a écrit :
>
>
> No-one owns it until Probate is granted, though the courts have ultimate
>
> jurisdiction over it
>

OK. So I dealt with all this in detail in an earlier post but it seems like not everyone (Norman and Steve being two) believe me, though they are offering no support for their own opinions.

Real estate is straightforward. In England and Wales (and throughout this note - Scotland is quite different and August can explain the detail there better than I) after 1925 real estate devolves on the personal representative by section 1 of the Administration of Estates Act 1925:

http://www.legislation.gov.uk/ukpga/Geo5/15-16/23/section/1

(in cases of intestacy the estate vests in the Public Trustee by section 9 until grant of administration:

http://www.legislation.gov.uk/ukpga/Geo5/15-16/23/section/9

a point one has to worry about where a tenant dies intestate and the landlord needs to serve notice to quit on them).

Personal property (including chattels real) devolved on the personal representatives at common law. This is such trite law I can't immediately find an authority for it. Megarry & Wade (on my desk) and Halsbury's both say so and cite no authority for it. I suggest that anyone wishing to disagree with this point (Norman, Steve?) find something they _can_ site to show that the textbooks I have looked at are wrong.

What this means is that the executor owns the property at the moment of death. They can then give good title for it, eg by gift or by sale.

In Attenborough v Solomon [1913] AC 76, Viscount Haldane said:

"The general principles of law which govern this case are not doubtful. The position of an executor is a peculiar one. He is appointed by the will, but then, by virtue of his office, by the operation of law and not under the bequest in the will, he takes a title to the personal property of the testator, which vests him with the plenum dominium over the testator's chattels. He takes that, I say, by virtue of his office. The will becomes operative so far as its dispositions of personalty are concerned only it and when the executor assents to those dispositions. It is true that by virtue of his office he has a general power to sell or pledge for the purpose of paying debts and getting in the money value of the estate. He is executor and he remains executor for an indefinite time. Authorities were cited to us by Mr. Hughes to the effect that an executor can sell at a period long after the death of the testator, and that where it is a question of conveyancing, as for instance in the case of the sale of leaseholds by the executor, the purchaser is not entitled to make requisitions as to whether debts remain unpaid, because the executor's office remains intact and he may exercise his functions at any time."

The executor remains the legal and beneficial owner of the property until they assent to any testamentary disposition. The Viscount went on to explain this:

"The office of executor remains, with its powers attached, but the property which he had originally in the chattels that devolved upon him, and over which these powers extended, does not necessarily remain. So soon as he has assented, and this he may do informally and the assent may be inferred from his conduct, the dispositions of the will become operative, and then the beneficiaries have vested in them the property in those chattels. The transfer is made not by the mere force of the assent of the executor, but by virtue of the dispositions of the will which have become operative because of this assent."

So the grant of probate (unlike letters of administration) does not vest any property in the executor - that has already happened - but it has a number of effects:

[1] if property is registered land, then the personal representative will have to produce the grant of probate (or letters of administration) in order to have the land transferred or vested.

[2] it allows the executor to prove title - which will be essential for many kinds of transaction.

This is a complex topic, so I won't go into it in more detail. There are many cases where a grant of probate may be required - there are situations where a beneficiary can require a grant is taken out by an executor who has acted for instance. But there are also situations where a grant will never be necessary (in the case of some very modest estates for instance).

The "estate" describes the totality of property administered by the personal representatives and is not a separate person in its own right.

As a procedural convenience you may sue the "estate" as "the estate of XXXX (deceased)" (in the same way you can sue a "partnership" even though it has no legal personality) but you would normally have to ensure that someone is appointed personal representative before you can proceed with your claim. See CPR 19.8:

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19#IDAJPLCC

I hope that pushes this thread back onto a course that more roughly approximates the law. As I said the vesting on death in executors has come up numerous times. I wish there was an FAQ as this would be ripe for going in.

Francis

[Tim Jackson]

On Sat, 23 Mar 2013 20:55:02 +0000, Norman Wells wrote...

>
> Tim Jackson wrote:
> > On Sat, 23 Mar 2013 18:10:02 +0000, Norman Wells wrote...
> >
> >> I think the owner initially is 'the estate'. When probate is
> >> granted it is the executor.
> >
> > And who owns 'the estate' in the meantime?
>
> No-one owns it until Probate is granted, though the courts have ultimate
> jurisdiction over it

The executor is appointed by the will. His legal authority to deal with
assets in the estate derives from the will. Probate is about proving
the validity of the will and of his appointment, so that there can't be
any argument about it.

In fact, if the estate is very small and doesn't include things like
houses and shares, the executor may be able to settle everything without
getting grant of probate.

[steve robinson]

Anthony R. Gold wrote:

> Not at all. Being able eventually to transfer the house may be
> conditioned on those matters but this (i.e. occupying a property
> immediately as part of his executor duties) does not.

It certainly does if the estate is not liquid, then a fair rent should
be accounted for whilst the property is occupied .

Which i id say in my original post but it got sipped out

[Roland Perry]

In message <cf4d581d-67da-420c...@googlegroups.com>, at
00:10:02 on Sun, 24 Mar 2013, Francis Davey <fjm...@gmail.com> remarked:

>What this means is that the executor owns the property at the moment of death.

Might this affect any means-tested benefits they are getting, or is
property held as an executor an exception? Is there a requirement to
tell the various benefits people of a 'change in circumstances'?
--
Roland Perry

[Norman Wells]

Anthony R. Gold wrote:

> On Sat, 23 Mar 2013 20:55:02 +0000, "Norman Wells" <h...@unseen.ac.am>
> wrote:
>
>> As far as I am aware, 'the estate' can be sued and can sue others.
>> That being so, it must have a legal identity and can therefore own
>> property.
>

> John Doe had an estate (his net worth) prior to his death. In your
> scheme of things, did this estate of the living John Doe also have a
> separate legal personality from Joe himself? Could Joe sue his own
> estate or vice versa?

He did not have an estate before he died. He had his possessions. They
only become his estate on his death.

[Norman Wells]

Tim Jackson wrote:
> On Sat, 23 Mar 2013 20:55:02 +0000, Norman Wells wrote...
>> Tim Jackson wrote:
>>> On Sat, 23 Mar 2013 18:10:02 +0000, Norman Wells wrote...
>>>
>>>> I think the owner initially is 'the estate'. When probate is
>>>> granted it is the executor.
>>>
>>> And who owns 'the estate' in the meantime?
>>
>> No-one owns it until Probate is granted, though the courts have
>> ultimate jurisdiction over it
>
> The executor is appointed by the will.

Since he can decline to act, and someone else can act, he is not
'appointed' by the Will but merely suggested by it.

> His legal authority to deal with assets in the estate derives from
> the will.

No, that derives from the grant of Probate which appoints him as
executor.

> Probate is about proving the validity of the will

No it isn't. It is merely based on a declaration by the putative
executor that the Will attached is the last Will and Testament of the
deceased, and that he is the person with the best claim to act as
executor, which is usually that he is the person the deceased wished to
be his executor. A subsequent Will or other circumstances may of course
turn up, in which case the validity of the original Will has not been
proved at all.

> and of his appointment, so that there can't be any argument about it.

There isn't as far as I'm concerned. Probate appoints him as the
executor and it's that which gives him the authority to act in matters
of the estate, not the Will.

>
> In fact, if the estate is very small and doesn't include things like
> houses and shares, the executor may be able to settle everything
> without getting grant of probate.

Indeed, that's an administrative convenience, which relies on common
sense being applied in respect of small amounts that do not warrant all
the formalities being strictly adhered to.

[Norman Wells]

No-one's arguing otherwise. The only question is when. You say it's
immediately on death. I say it's when there are _actually_ personal
representatives or executors and that there aren't any until the court
appoints them by virtue of the grant of Probate. Until then there are
only rights to be appointed as such.

> What this means is that the executor owns the property at the moment
> of death. They can then give good title for it, eg by gift or by sale.

With respect, that is absurd. What it means is that the person named in
the Will could theoretically sell off all the property of the deceased
perfectly legally but then decline to act as the executor, keeping the
proceeds for himself. What is to stop him? It's his property.

> In Attenborough v Solomon [1913] AC 76, Viscount Haldane said:
>
> "The general principles of law which govern this case are not
> doubtful. The position of an executor is a peculiar one. He is
> appointed by the will, but then, by virtue of his office, by the
> operation of law and not under the bequest in the will, he takes a
> title to the personal property of the testator, which vests him with
> the plenum dominium over the testator's chattels. He takes that, I
> say, by virtue of his office. The will becomes operative so far as
> its dispositions of personalty are concerned only it and when the
> executor assents to those dispositions. It is true that by virtue of
> his office he has a general power to sell or pledge for the purpose
> of paying debts and getting in the money value of the estate. He is
> executor and he remains executor for an indefinite time. Authorities
> were cited to us by Mr. Hughes to the effect that an executor can
> sell at a period long after the death of the testator, and that where
> it is a question of conveyancing, as for instance in the case of the
> sale of leaseholds by the executor, the purchaser is not entitled to
> make requisitions as to whether debts remain unpaid, because the
> executor's office remains intact and he may exercise his functions at
> any time."
>
> The executor remains the legal and beneficial owner of the property
> until they assent to any testamentary disposition.

Of course. No-one is arguing otherwise. The question is when he first
owns the property not how long he owns it for.

> The Viscount went on to explain this:
>
> "The office of executor remains, with its powers attached, but the
> property which he had originally in the chattels that devolved upon
> him, and over which these powers extended, does not necessarily
> remain. So soon as he has assented, and this he may do informally and
> the assent may be inferred from his conduct, the dispositions of the
> will become operative, and then the beneficiaries have vested in them
> the property in those chattels. The transfer is made not by the mere
> force of the assent of the executor, but by virtue of the
> dispositions of the will which have become operative because of this
> assent."
>
> So the grant of probate (unlike letters of administration) does not
> vest any property in the executor - that has already happened -

I don't think that follows at all from what you've quoted. The above is
not to do with when the executor becomes such, and when he's entitled to
make dispositions, but how he effects the dispositions in the Will after
he has become such.

> but it has a number of effects:
>
> [1] if property is registered land, then the personal representative
> will have to produce the grant of probate (or letters of
> administration) in order to have the land transferred or vested.
>
> [2] it allows the executor to prove title - which will be essential
> for many kinds of transaction.
>
> This is a complex topic, so I won't go into it in more detail. There
> are many cases where a grant of probate may be required - there are
> situations where a beneficiary can require a grant is taken out by an
> executor who has acted for instance. But there are also situations
> where a grant will never be necessary (in the case of some very
> modest estates for instance).

De minimis principles do not make general law but are pragmatic
exceptions from it.

> The "estate" describes the totality of property administered by the
> personal representatives and is not a separate person in its own
> right.
>
> As a procedural convenience you may sue the "estate" as "the estate
> of XXXX (deceased)" (in the same way you can sue a "partnership" even
> though it has no legal personality) but you would normally have to
> ensure that someone is appointed personal representative before you
> can proceed with your claim. See CPR 19.8:
>
> http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19#IDAJPLCC

That's not in my view 'a procedural convenience' as you seek to minimise
it, but a perfectly proper standard procedure. If 'the estate' can be
sued then it must have a legal identity. It can therefore own property
as I say it does in the period between death and the grant of Probate.
It's all logical, it's all sensible, and it all follows.

> I hope that pushes this thread back onto a course that more roughly
> approximates the law. As I said the vesting on death in executors has
> come up numerous times. I wish there was an FAQ as this would be ripe
> for going in.

Ah, but who would write it, you or me?

[Chris R]

>
>
> "GB" wrote in message news:514df8af$0$1139$5b6a...@news.zen.co.uk...

Such as what? And does it matter anyway, if the liability is to be
discharged out of the assets of the estate?

It certainly makes sense for putative executors to try to arrange insurance
on assets or take precautions such as security, but I'm not aware of any
major hazards for executors arising from events before the grant of probate.
Nor can I think of any liabilities arising purely from ownership, with the
exception of oddities like rentcharges and chancel repair liabilities.
--
Chris R

[Francis Davey]

Le dimanche 24 mars 2013 10:10:02 UTC, Norman Wells a écrit :
>
> No-one's arguing otherwise. The only question is when. You say it's
>
> immediately on death. I say it's when there are _actually_ personal
>
> representatives or executors and that there aren't any until the court

I could try quoting s55 of the act:

http://www.legislation.gov.uk/ukpga/Geo5/15-16/23/section/55

but that's not going to get me very far is it? The problem here is that you won't be told but you won't produce any authority to back your position. You are simply sitting in your virtual armchair pontificating about what might or might not be the position.

So I'm not sure I can really be bothered to go on unless you can do some work too.

Sigh.

Francis

[Chris R]

>
>
> "steve robinson" wrote in message
> news:xn0ify6n...@reader80.eternal-september.org...

Is there authority for that? I can't see why an executor could not occupy
property during the period of administration of the estate. In some cases,
such as agricultural or retail properties, it is pretty much essential.
--
Chris R

[Chris R]

>
>
> "Francis Davey" wrote in message
> news:cf4d581d-67da-420c...@googlegroups.com...
>
> Le samedi 23 mars 2013 20:55:02 UTC, Norman Wells a �crit :
> >
<snipped solid legal analysis>

>
> I hope that pushes this thread back onto a course that more roughly
> approximates the law. As I said the vesting on death in executors has come
> up numerous times. I wish there was an FAQ as this would be ripe for going
> in.
>

Thanks, Francis, for saving me the trouble. However I fear that by quoting
some actual law we are merely spoiling Norman's enjoyment.
--
Chris R

[steve robinson]

Are chancel charges still enforceable

[Francis Davey]

Le dimanche 24 mars 2013 11:45:02 UTC, steve robinson a écrit :
>
> Are chancel charges still enforceable

Yes, but they will ceases to be overriding interests in October this year (which means that if they aren't on the registered title you can take the property without having to worry about them).

Francis

[steve robinson]

Occupying the property isnt the issue (assuming here its a domestic
property) if you are the only beneficary its unlikely to cause any
issues, it can become a problem if other beneficaries are involved.
Its the executors duty to use due diligence to maximise the value of
the estate for the beneficaries, allowing the property to be occupied
(not by those already resident) without collecting rental income lowers
the value of the estate which may draw unwanted attention from the tax
man.
Its not unusual now for rentals on three bed houses to run into 12K a
year plus

another issue not raised is the contents within the property, these
may well not be part of the estate bestowed upon the person wishing to
occupy the house, things can go 'missing' which opens up another can of
worms

[Norman Wells]

Francis Davey wrote:
> Le dimanche 24 mars 2013 10:10:02 UTC, Norman Wells a écrit :
>>
>> No-one's arguing otherwise. The only question is when. You say it's
>>
>> immediately on death. I say it's when there are _actually_ personal
>>
>> representatives or executors and that there aren't any until the
>> court
>
> I could try quoting s55 of the act:
>
> http://www.legislation.gov.uk/ukpga/Geo5/15-16/23/section/55
>
> but that's not going to get me very far is it?

No, I don't think it is. The reason is that it doesn't address the
central point of _when_ an executor named in a Will actually owns the
deceased's property and can therefore deal with it. It's just a
standard Section of definitions, none of which, as far as I can see,
help your argument at all. In fact, one particular definition seems to
go directly against what you claim:

"1 (ii) "Administrator" means a person to whom administration is
granted"

Administration is only granted through Probate. Before that, you are
clearly _not_ an Administrator and there is no basis on which the
deceased's property therefore becomes yours.

> The problem here is
> that you won't be told but you won't produce any authority to back
> your position. You are simply sitting in your virtual armchair
> pontificating about what might or might not be the position.

It's _your_ position that is inherently illogical, and it therefore
falls to you to support it, which you just have not done.

Perhaps you rely on another definition in Section 55 which I have
overlooked. If so, could you please say which?

[steve robinson]

Thanks Francis

[Tim Jackson]

On Sun, 24 Mar 2013 11:05:02 +0000, Chris R wrote...

> >
> > "GB" wrote in message news:514df8af$0$1139$5b6a...@news.zen.co.uk...

> > >>

> > >> So, 6 months after death, Mr Bloggs is appointed executor by the court.

No, Mr Bloggs is appointed by the will. The court merely confirms that
the appointment is valid.

> > >> This has retrospective effect back to the moment of death?

Yes, because he was appointed by the will.

> > >> That could
> > >> have interesting consequences if, some time between death and the court
> > >> appointment, some 3rd party has fallen down an open man hole, or
> > >> similar
> > >> mishap has occurred.
> > >>
> >
> > > Why?
> >
> > So, if the court appoints Mr Bloggs six months after the original death,
> > but with retrospective effect, Mr Bloggs becomes liable for 3rd party
> > liability claims he knew nothing about and had no power to prevent.
>
> Such as what?

Well, I think GB was suggesting that there was an unsafe open manhole on
the deceased's property, and that someone fell down it and claimed for
personal injury.

> And does it matter anyway, if the liability is to be
> discharged out of the assets of the estate?

Exactly. Since the executor was appointed by the will, the effect is
not retrospective anyway.

(Though the executor can renounce his appointment before he takes it up,
or he can reserve his power in favour of other executors named in the
will.)

> It certainly makes sense for putative executors to try to arrange insurance
> on assets or take precautions such as security,

Or covering up open manholes.

> but I'm not aware of any
> major hazards for executors arising from events before the grant of probate.
> Nor can I think of any liabilities arising purely from ownership, with the
> exception of oddities like rentcharges and chancel repair liabilities.

--

[Norman Wells]

Chris R wrote:
>> "Francis Davey" wrote in message
>> news:cf4d581d-67da-420c...@googlegroups.com...
>>

>> Le samedi 23 mars 2013 20:55:02 UTC, Norman Wells a écrit :
>>>
> <snipped solid legal analysis>
>>
>> I hope that pushes this thread back onto a course that more roughly
>> approximates the law. As I said the vesting on death in executors
>> has come up numerous times. I wish there was an FAQ as this would be
>> ripe for going in.
>>
> Thanks, Francis, for saving me the trouble. However I fear that by
> quoting some actual law we are merely spoiling Norman's enjoyment.

The problem is that I haven't been referred to any law or cases that
actually establish what you both claim. On the contrary, the law to
which I've been referred seems to support my view that an executor does
not own the deceased's property until the court has appointed him as
such through teh grant of Probate.

Perhaps you'd like to address the point that if, as you claim, the
executor named in the Will owns the property immmediately on death, he

[Mark Goodge]

On Sun, 24 Mar 2013 12:30:02 +0000, Norman Wells put finger to keyboard and
typed:

>
>Perhaps you'd like to address the point that if, as you claim, the
>executor named in the Will owns the property immmediately on death, he
>could theoretically sell off all the property of the deceased perfectly
>legally but then decline to act as the executor, keeping the
>proceeds for himself. What is to stop him? It's his property.

I'm pretty sure that if someone was named as an executor, and carried out
an act which is reserved to the executor, he would thereby be deemed by a
court to have accepted the responsibilities of an executor by his actions.

Mark
--
Please take a short survey on salary perceptions: http://meyu.eu/am
My blog: http://mark.goodge.co.uk

[Mark Goodge]

On Sun, 24 Mar 2013 09:15:03 +0000, Norman Wells put finger to keyboard and
typed:

>Tim Jackson wrote:
>> On Sat, 23 Mar 2013 20:55:02 +0000, Norman Wells wrote...
>>> Tim Jackson wrote:
>>>> On Sat, 23 Mar 2013 18:10:02 +0000, Norman Wells wrote...
>>>>
>>>>> I think the owner initially is 'the estate'. When probate is
>>>>> granted it is the executor.
>>>>
>>>> And who owns 'the estate' in the meantime?
>>>
>>> No-one owns it until Probate is granted, though the courts have
>>> ultimate jurisdiction over it
>>
>> The executor is appointed by the will.
>
>Since he can decline to act, and someone else can act, he is not
>'appointed' by the Will but merely suggested by it.

The executor can't decline to act in the way that he would, for example,
decline the offer of a nice cup of tea. The will appoints an executor, and
the person so appointed *is* the executor unless and until he explicitly
renounces the responsibility or he is removed from that position by order
of a court.

>> His legal authority to deal with assets in the estate derives from
>> the will.
>
>No, that derives from the grant of Probate which appoints him as
>executor.

That is comnpletely back to front. It is the executor who applies for, and
obtains, Probate, not Probate which appoints the executor.

[Percy Picacity]

Your interpretation of the word 'estate' is not the same as either the
dictionary or the law uses. I would almost go so far as to say your
statement is quite incorrect.

--

Percy Picacity

[Percy Picacity]

On 2013-03-24 10:10:02 +0000, Norman Wells said:

> Francis Davey wrote:

>
>
>> I hope that pushes this thread back onto a course that more roughly
>> approximates the law. As I said the vesting on death in executors has
>> come up numerous times. I wish there was an FAQ as this would be ripe
>> for going in.
>
> Ah, but who would write it, you or me?

Given that one of you is a knowledgeable lawyer, and the other is
totally wrong on this issue because he has assumed that he can write
the law from 'common sense' principles which seem obvious to him
without any factual backing, I know who I would suggest.

--

Percy Picacity

[Percy Picacity]

On 2013-03-24 10:10:02 +0000, Norman Wells said:

That would be a problem. Which is why, having taken up the role of
executor (before probate!), he cannot simply decline to act without
further responsibility for his actions. He could decline before he
took up the role, of course.

--

Percy Picacity

[Percy Picacity]

On 2013-03-24 14:10:02 +0000, Mark Goodge said:

> On Sun, 24 Mar 2013 12:30:02 +0000, Norman Wells put finger to keyboard and
> typed:
>>
>> Perhaps you'd like to address the point that if, as you claim, the
>> executor named in the Will owns the property immmediately on death, he
>> could theoretically sell off all the property of the deceased perfectly
>> legally but then decline to act as the executor, keeping the
>> proceeds for himself. What is to stop him? It's his property.
>
> I'm pretty sure that if someone was named as an executor, and carried out
> an act which is reserved to the executor, he would thereby be deemed by a
> court to have accepted the responsibilities of an executor by his actions.
>
> Mark

Just to spell this out (I know it is obvious) he would then be liable
to the beneficiaries, the state and anyone else with a claim on the
estate to administer it appropriately in light of the will and these
various potential claimants' inerests.

--

Percy Picacity

[Norman Wells]

Who says that it will be discharged out of the assets of the estate?
The argument here, which I have been arguing against, is that the
executor owns the property as soon as the person dies. If that is the
case, why shouldn't the person who falls down the manhole sue the
executor named in the Will personally as owner of the property, whether
or not he has been granted or even applied for Probate? And if he's
awarded, say, a million pounds, why should that be limited by the value
of the estate which may be, say, only a hundred thousand pounds?

> Since the executor was appointed by the will, the effect is
> not retrospective anyway.

What do you mean by that? You said above that his appointment has
retrospective effect to the moment of death.

> (Though the executor can renounce his appointment before he takes it
> up, or he can reserve his power in favour of other executors named in
> the will.)
>
>> It certainly makes sense for putative executors to try to arrange
>> insurance on assets or take precautions such as security,

It seems inherently unfair to me and contrary to natural justice that
you can become personally liable for something just because you've been
nominated as an executor in someone else's document, when you may in
fact be totally unaware that you have been, and never had any intention
of taking it up. Doesn't it to you?

[Handsome Jack]

Francis Davey <fjm...@gmail.com> posted

>"The general principles of law which govern this case are not doubtful.
>The position of an executor is a peculiar one. He is appointed by the
>will, but then, by virtue of his office, by the operation of law and
>not under the bequest in the will, he takes a title to the personal
>property of the testator, which vests him with the plenum dominium over
>the testator's chattels. He takes that, I say, by virtue of his office.
>The will becomes operative so far as its dispositions of personalty are
>concerned only it and when the executor assents to those dispositions.
>It is true that by virtue of his office he has a general power to sell
>or pledge for the purpose of paying debts and getting in the money
>value of the estate. He is executor and he remains executor for an
>indefinite time. Authorities were cited to us by Mr. Hughes to the
>effect that an executor can sell at a period long after the death of
>the testator, and that where it is a question of conveyancing, as for
>instance in the case of the sale of leaseholds by the executor, the
>purchaser is not entitled to make requisitions as to whether debts
>remain unpaid, because the executor's office remains intact and he may
>exercise his functions at any time."
>
>The executor remains the legal and beneficial owner of the property
>until they assent to any testamentary disposition.

Is it not rather the case that English law distinguishes between legal
and beneficial ownership; and at the testator's death the executors
assume legal ownership while beneficial ownership passes immediately to
the heirs?

--
Jack

[Tim Jackson]

On Sun, 24 Mar 2013 11:55:01 +0000, Norman Wells wrote...

> "1 (ii) "Administrator" means a person to whom administration is
> granted"
>
> Administration is only granted through Probate. Before that, you are
> clearly _not_ an Administrator and there is no basis on which the
> deceased's property therefore becomes yours.

The generic term is "representation" or "personal representative". The
two types of personal representative are executors and administrators.
See section 55 (linked by Francis):
"'Personal representative' means the executor .... or administrator for
the time being of a deceased person...."

Executors are appointed by a will. The will says something like "I
appoint Frederick Bloggs as my executor". Probate confirms the validity
of that appointment.

Administrators on the other hand are appointed directly by the court,
e.g. if there is no will, or if the executors appointed by the will are
unable or unwilling to act. Necessarily that will involve a time delay.


Section 1 (linked by Francis) says that real estate is devolved on the
personal representative **on the death of the deceased person**. This
is how an executor has the legal ownership of the estate right from the
moment of death.

Thus, your argument that the executor only has legal ownership after
probate is granted directly contradicts section 1.

(Section 1 also says that the real estate devolves "from time to time" -
e.g. if there is a change of the personal representative. For example,
if the executor himself also dies.)


So what if there is no will and no executor? How does the law cope with
the time delay before the court appoints an adminstrator?

The answer is is section 9, also linked by Francis:
"Where a person dies intestate, his real and personal estate shall vest
in the Public Trustee until the grant of administration."

Likewise if there is a will, but on the testator's death or before
probate is granted there ceases to be an executor available. Section 9
(2).

Note that this only applies where there is no executor. If there is an
executor, why does section 9 not make equivalent provision for the
Public Trustee to own the estate while he applies for probate? Because
it's not necessary. Because the executor has the legal ownership from
the time of death onwards, and it's only necessary to cope with the
situations where there is no executor.

[Norman Wells]

You can lead a horse to water but you can't make him drink. If he
doesn't want to act as executor then nobody can make him. Besides,
would the court think it a good idea to have as an executor someone who
has already disposed of some or all of the estate and maybe spent the
money? Would they therefore grant Probate in his favour? And if they
didn't, how is he liable to anyone? He accepted no responsibility as
regards the estate, but merely disposed, perfectly legally, of property
that others here say was his from the time of death.

[Norman Wells]

Indeed. That's why it's almost certainly wrong.

> Which is why, having taken up the role of
> executor (before probate!), he cannot simply decline to act without
> further responsibility for his actions.

What's to stop him? He just doesn't apply for Probate.

> He could decline before he took up the role, of course.

That's not part of the scenario though.

Does it not seem far more sensible and therefore far more likely to be
correct that, until Probate is granted, 'the estate' owns the property
with no-one having any authority to deal with it, and that only when an
executor has been properly appointed by grant of Probate does he have
any legal authority to distribute the assets? That way, power and
responsibility align which they don't otherwise, leading to anomalous
situations as I've outlined.

If that is not the case, then the law is an ass, which it very rarely
is, and it's down to those who think it is to show that it is.

[Mark Goodge]

On Sun, 24 Mar 2013 13:55:09 +0000, Norman Wells put finger to keyboard and
typed:

>Tim Jackson wrote:
>> On Sun, 24 Mar 2013 11:05:02 +0000, Chris R wrote...
>>>> "GB" wrote in message
>>>> news:514df8af$0$1139$5b6a...@news.zen.co.uk...
>>

>>> And does it matter anyway, if the liability is to be
>>> discharged out of the assets of the estate?
>>
>> Exactly.
>
>Who says that it will be discharged out of the assets of the estate?
>The argument here, which I have been arguing against, is that the
>executor owns the property as soon as the person dies. If that is the
>case, why shouldn't the person who falls down the manhole sue the
>executor named in the Will personally as owner of the property, whether
>or not he has been granted or even applied for Probate?

He can. But you can always renounce executorship if you want to, and doing
so will absolve you of any liability that might otherwise entail.

> And if he's
>awarded, say, a million pounds, why should that be limited by the value
>of the estate which may be, say, only a hundred thousand pounds?

It's unlikely that a court would award more than the value of the estate.

>It seems inherently unfair to me and contrary to natural justice that
>you can become personally liable for something just because you've been
>nominated as an executor in someone else's document, when you may in
>fact be totally unaware that you have been, and never had any intention
>of taking it up. Doesn't it to you?

Up to a point, yes. But that's the way the system works. The presumption
that the law must, of necessity, be fair is one that I would not expect any
regular user of this group to make.

[Tim Jackson]

On Sun, 24 Mar 2013 12:30:02 +0000, Norman Wells wrote...

> The problem is that I haven't been referred to any law or cases that
> actually establish what you both claim. On the contrary, the law to
> which I've been referred seems to support my view that an executor does
> not own the deceased's property until the court has appointed him as
> such through teh grant of Probate.

You've been referred to Section 1 of the Administration of Estates Act
1925. It says that real estate devolves **on the death** of the
deceased person on the personal representative.

>
> Perhaps you'd like to address the point that if, as you claim, the
> executor named in the Will owns the property immmediately on death, he
> could theoretically sell off all the property of the deceased perfectly
> legally but then decline to act as the executor, keeping the
> proceeds for himself. What is to stop him? It's his property.

This is called "intermeddling". Someone who has intermeddled cannot
then renounce his executorship.

Furtermore, the beneficiaries of the will could sue him. While the
executor may have legal ownership, he also has duties to the
beneficiaries to get in the estate and to account to them for it.

[Tim Jackson]

On Sun, 24 Mar 2013 14:25:02 +0000, Mark Goodge wrote...

>
> On Sun, 24 Mar 2013 09:15:03 +0000, Norman Wells put finger to keyboard and
> typed:
> >

> >No, that derives from the grant of Probate which appoints him as
> >executor.
>
> That is comnpletely back to front. It is the executor who applies for, and
> obtains, Probate, not Probate which appoints the executor.

From the Latin "probare", to prove. The executor applies to the court
in order to prove the will, and to prove that he has been appointed
executor by the will. The grant of probate is a document in which the
court says "yes, we're satisfied it's been proven".

[Mark Goodge]

On Sun, 24 Mar 2013 15:20:02 +0000, Norman Wells put finger to keyboard and
typed:

>Percy Picacity wrote:
>> On 2013-03-24 10:10:02 +0000, Norman Wells said:
>>> Francis Davey wrote:
>
>>>> What this means is that the executor owns the property at the moment
>>>> of death. They can then give good title for it, eg by gift or by
>>>> sale.
>>>
>>> With respect, that is absurd. What it means is that the person named
>>> in the Will could theoretically sell off all the property of the
>>> deceased perfectly legally but then decline to act as the executor,
>>> keeping the proceeds for himself. What is to stop him? It's his
>>> property.
>>
>> That would be a problem.
>
>Indeed. That's why it's almost certainly wrong.
>
>> Which is why, having taken up the role of
>> executor (before probate!), he cannot simply decline to act without
>> further responsibility for his actions.
>
>What's to stop him? He just doesn't apply for Probate.

If he didn't apply for Probate, and didn't take any other actions
commensurate with being an executor, then eventually someone (one of the
potential beneficiaries, most likely) will get fed up with waiting and
apply to the court to have him removed as executor so that someone else can
do the job. But simply doing nothing will not, in the meantime, absolve him
of his legal responsibilities. If he carries out any of the actions
associated with being an executor (such as disposing of any of the
property) without first applying for Probate then he opens himself up to
potential legal action from anyone who loses out as a result of those
action. If he wants to absolve himself of his responsibilities then he
needs to explicitly renounce the executorship prior to taking any actions
which an executor would take.

[Mark Goodge]

On Sun, 24 Mar 2013 15:05:02 +0000, Norman Wells put finger to keyboard and

typed:

>Percy Picacity wrote:
>> On 2013-03-24 14:10:02 +0000, Mark Goodge said:
>>
>>> On Sun, 24 Mar 2013 12:30:02 +0000, Norman Wells put finger to
>>> keyboard and typed:
>>>>
>>>> Perhaps you'd like to address the point that if, as you claim, the
>>>> executor named in the Will owns the property immmediately on death,
>>>> he could theoretically sell off all the property of the deceased
>>>> perfectly legally but then decline to act as the executor, keeping
>>>> the proceeds for himself. What is to stop him? It's his property.
>>>
>>> I'm pretty sure that if someone was named as an executor, and
>>> carried out an act which is reserved to the executor, he would
>>> thereby be deemed by a court to have accepted the responsibilities
>>> of an executor by his actions. Mark
>>
>> Just to spell this out (I know it is obvious) he would then be liable
>> to the beneficiaries, the state and anyone else with a claim on the
>> estate to administer it appropriately in light of the will and these
>> various potential claimants' inerests.
>
>You can lead a horse to water but you can't make him drink. If he
>doesn't want to act as executor then nobody can make him.

That is correct. A person named as executor can, provided he has not
already started to act as executor, renounce the executorship, and cannot
be prevented from doing so. But what he can't do is start to act as an
executor and then change his mind later.

> Besides,
>would the court think it a good idea to have as an executor someone who
>has already disposed of some or all of the estate and maybe spent the
>money?

If he has done that, then he has started to act as executor and therefore
he is the executor. The fact that he is possibly a bad executor does not
change that.

> Would they therefore grant Probate in his favour?

Unless there are reasons why he should be removed as executor, the court
has no reason not to grant him Probate.

> And if they
>didn't, how is he liable to anyone? He accepted no responsibility as
>regards the estate, but merely disposed, perfectly legally, of property
>that others here say was his from the time of death.

Just because it is his property doesn't mean he can do what he likes with
it.

Suppose you and I enter into an agreement that you will permit me to garage
my car on your property, on condition that when I come to sell it I will
give you first refusal at a price agreed now to be below the expected
market value. That is clearly a contract: it has consideration and
acceptance on both sides and, therefore, is binding. And then suppose that,
in five months time, I sell it without notifying you, at a price higher
than we had agreed. Do you have a claim against me?

I'm pretty sure your answer to that would be "yes". Despite the fact that
teh car remains my property, I am no longer free to do with it what I want.
I am bound by the terms of my contract with you. And if I break that
contract, you can take action against me.

An executor is in a similar position. He is the legal owner of property
which is subject to a legally binding agreement as to its disposal. In this
case, the binding agreement is a will, rather than a contract, but it is,
nonetheless, binding on him as the owner. If, therefore, he disposes of the
property in a manner which is not in accordance with the agreement, those
who would have benefited from that agreement have a claim against him.

[Mark Goodge]

On Sun, 24 Mar 2013 15:45:16 +0000, Tim Jackson put finger to keyboard and

typed:

>On Sun, 24 Mar 2013 14:25:02 +0000, Mark Goodge wrote...
>>
>> On Sun, 24 Mar 2013 09:15:03 +0000, Norman Wells put finger to keyboard and
>> typed:
>> >
>> >No, that derives from the grant of Probate which appoints him as
>> >executor.
>>
>> That is comnpletely back to front. It is the executor who applies for, and
>> obtains, Probate, not Probate which appoints the executor.
>
>From the Latin "probare", to prove. The executor applies to the court
>in order to prove the will, and to prove that he has been appointed
>executor by the will. The grant of probate is a document in which the
>court says "yes, we're satisfied it's been proven".

That's what I like about ulm: It's so educational :-)

[Tim Jackson]

On Sun, 24 Mar 2013 15:05:02 +0000, Norman Wells wrote...

> He accepted no responsibility as
> regards the estate, but merely disposed, perfectly legally, of property
> that others here say was his from the time of death.

His duties to account to the beneficiaries also arise at the time of
death.

If he wants to renounce his executorship, he has to do so before he has
taken any kind of action with respect to the estate. He can't renounce
once he has started to act. He can't accept the ownership aspects but
abdicate the responsibilities that go with them.

[Chris R]

>
>
> "Norman Wells" wrote in message news:0OB3t.228087$Dm1.1...@fx01.fr7...
> Francis Davey wrote:
> > Le dimanche 24 mars 2013 10:10:02 UTC, Norman Wells a �crit :

> >>
> >> No-one's arguing otherwise. The only question is when. You say it's
> >>
> >> immediately on death. I say it's when there are _actually_ personal
> >>
> >> representatives or executors and that there aren't any until the
> >> court
> >
> > I could try quoting s55 of the act:
> >
> > http://www.legislation.gov.uk/ukpga/Geo5/15-16/23/section/55
> >
> > but that's not going to get me very far is it?
>
> No, I don't think it is. The reason is that it doesn't address the
> central point of _when_ an executor named in a Will actually owns the
> deceased's property and can therefore deal with it. It's just a standard
> Section of definitions, none of which, as far as I can see, help your
> argument at all. In fact, one particular definition seems to go directly
> against what you claim:
>
> "1 (ii) "Administrator" means a person to whom administration is granted"
>
> Administration is only granted through Probate. Before that, you are
> clearly _not_ an Administrator and there is no basis on which the
> deceased's property therefore becomes yours.
>
> > The problem here is
> > that you won't be told but you won't produce any authority to back
> > your position. You are simply sitting in your virtual armchair
> > pontificating about what might or might not be the position.
>
> It's _your_ position that is inherently illogical, and it therefore falls
> to you to support it, which you just have not done.

All right, I'll rise to it one last time. Section 1 AEA 1925 says that real
property of the deceased devolves upon the personal representatives *on his
death*. Not later. On his death. Section 9 says that where there are no
executors, including on intestacy, the property vests temporarily in the
Public Trustee (it used to be the President of the Family Division, and
before that the Bishop) until letters of administration are granted. That is
because, unlike executors, administrators only take office from the date of
grant. Executors take office from the date of death. But once administrators
are appointed, the vesting of the property takes effect retrospectively to
the date of death. Section 9 does not apply when there are executors because
the property vests in the executors from the date of death under section 1 -
there is no need to "warehouse" it with the Public Trustee until the grant
of probate.

Megarry & Wade, to which my learned friend referred earlier, in my trusty
1975 edition, explains that until 1898, land vested in the heirs immediately
upon death, but the 1925 Act changed the rules for land so that they were
broadly the same as for personal property, ie "If an executor was appointed,
the the property vested in him from the moment of death, although it was
necessary to for him to confirm his position by by obtaining probate of the
will." And elsewhere, "The executor derives his powers from the will,
although he must obtain confirmation of his position by proving the will, ie
obtaining a grant of probate".

--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[Norman Wells]

Most laws _are_ written from common sense principles, so that's not in
fact a bad place to start.

I've set out elsewhere in this thread a scenario which leads to a very
silly result if, as some claim here, the executor named in the Will
actually owns the property in the estate from the time of death and can
legally sell it immediately.

They haven't yet shown by reference to the law that their silly result
is correct. That leads me to think that they can't and that it is not
in fact correct. There is a simpler, better, more logical, more likely
explanation that does not lead to a silly result. Mine.

[steve robinson]

If he accepted no responsibility for the estate but disposed of items
prior to the grant of probate then theft comes to mind possible
conspiracy to defraud or charges of a similar ilk

[Norman Wells]

Mark Goodge wrote:
> On Sun, 24 Mar 2013 09:15:03 +0000, Norman Wells put finger to
> keyboard and typed:
>
>> Tim Jackson wrote:
>>> On Sat, 23 Mar 2013 20:55:02 +0000, Norman Wells wrote...
>>>> Tim Jackson wrote:
>>>>> On Sat, 23 Mar 2013 18:10:02 +0000, Norman Wells wrote...
>>>>>
>>>>>> I think the owner initially is 'the estate'. When probate is
>>>>>> granted it is the executor.
>>>>>
>>>>> And who owns 'the estate' in the meantime?
>>>>
>>>> No-one owns it until Probate is granted, though the courts have
>>>> ultimate jurisdiction over it
>>>
>>> The executor is appointed by the will.
>>
>> Since he can decline to act, and someone else can act, he is not
>> 'appointed' by the Will but merely suggested by it.
>
> The executor can't decline to act in the way that he would, for
> example, decline the offer of a nice cup of tea. The will appoints an
> executor, and the person so appointed *is* the executor unless and
> until he explicitly renounces the responsibility or he is removed
> from that position by order of a court.

Merely being named in a document that another has signed doesn't make it
binding on him in the least. He may not even be aware that he is
mentioned in the Will in any capacity.

By what legal principle do you say that someone can lumber him with
responsibilities that he may not want in such a way?

He doesn't in fact have to do anything at all. And if he doesn't apply
for Probate, no-one can make him.

>>> His legal authority to deal with assets in the estate derives from
>>> the will.
>>
>> No, that derives from the grant of Probate which appoints him as
>> executor.
>
> That is comnpletely back to front. It is the executor who applies
> for, and obtains, Probate, not Probate which appoints the executor.

As I say, no document signed just by another can make any other person
do anything.

[Peter Crosland]

On 22/03/2013 22:05, Norman Wells wrote:
> Peter Crosland wrote:
>> On 22/03/2013 16:35, Bookworm wrote:
>>> My mother is in her late 90s and has left her whole estate to me.I am
>>> an executor and have EPA. I would like to move into her smaller
>>> house when she does die, (which I hope is not soon). Can I move into
>>> her house and sell my present house before probate? Do I have to
>>> purchase it 'for value' even though the proceeds will accrue to me?
>>
>> The EPA ceases at the point of death so it is irrelevant. You don't
>> have to purchase the property. Assuming you are the sole beneficiary
>> then it is yours from the moment she dies particularly as you are an
>> executor.
>
> Strictly, I don't think it does become his at that time. It belongs to
> the estate. When an executor is appointed by the grant of Probate it
> becomes the executor's property which he holds in trust for the intended
> beneficiary. In this case, since the executor will be the beneficiary,
> it effectively becomes his legally on grant of Probate. In practice,
> however, since he intends to take up the position of executor, no-one
> else has any right to evict him, and he can occupy it immediately after
> death if that's what he wants to do.

Surely the executor has immediate power to act and does not have to wait
until probate? Of course the executor does not have full powers to
dispose of the estate property until they have obtained probate but for
all practical purposes they are responsible for managing the assets of
the estate until they get the probate grant. In the particular scenario
the OP has asked about then the probate is really just a formality
assuming there is no IHT to be dealt with. I had a similar situation
when I administered the estate of my late mother.

Apart from a couple of small cash legacies the entire estate was left to
me. The only difference was that the house was owned by my mother and I
as tenants in common. To my surprise the Land Registry would not accept
the probate but required a declaration sworn by me in front of a Notary
Public instead. Contrast this with the pedants at the National Savings
who not only wanted an original copy of the probate grant as well as a
signed declaration before they would tell me what holdings my late
mother had. I was not best pleased when their reply was to send a cheque
for the single £1 premium bond she held!

--
Regards Peter Crosland

[Norman Wells]

Tim Jackson wrote:
> On Sun, 24 Mar 2013 11:55:01 +0000, Norman Wells wrote...
>
>> "1 (ii) "Administrator" means a person to whom administration is
>> granted"
>>
>> Administration is only granted through Probate. Before that, you are
>> clearly _not_ an Administrator and there is no basis on which the
>> deceased's property therefore becomes yours.
>
> The generic term is "representation" or "personal representative".
> The two types of personal representative are executors and
> administrators. See section 55 (linked by Francis):
> "'Personal representative' means the executor .... or administrator
> for the time being of a deceased person...."
>
> Executors are appointed by a will. The will says something like "I
> appoint Frederick Bloggs as my executor". Probate confirms the
> validity of that appointment.
>
> Administrators on the other hand are appointed directly by the court,
> e.g. if there is no will, or if the executors appointed by the will
> are unable or unwilling to act. Necessarily that will involve a time
> delay.

I accept what you say. I only brought up the bit about Administrators
because Francis merely referred airily to Section 55, which is just a
list of definitions without saying what out of the whole morass he
thought relevant. It was the closest I could find to anything relevant
and it seemed analogous. Had it defined Executor, it may well have
defined it similarly as 'a person to whom Probate has been granted', but
we'll never know because it doesn't.

Have _you_ any idea what Francis was on about in Section 55?

> Section 1 (linked by Francis) says that real estate is devolved on the
> personal representative **on the death of the deceased person**. This
> is how an executor has the legal ownership of the estate right from
> the moment of death.
>
> Thus, your argument that the executor only has legal ownership after
> probate is granted directly contradicts section 1.
>
> (Section 1 also says that the real estate devolves "from time to
> time" - e.g. if there is a change of the personal representative.
> For example, if the executor himself also dies.)

Indeed it does say that. In fact, to quote the whole of the relevant
bit it says "shall on his death .... devolve from time to time on the
personal representative"

I don't see anything there that requires a change in personal
representative, and I think it's perfectly legitimate to interpret it to
mean when there is a personal representative, which I say is not the
case until Probate has been granted.

> So what if there is no will and no executor? How does the law cope
> with the time delay before the court appoints an adminstrator?
>
> The answer is is section 9, also linked by Francis:
> "Where a person dies intestate, his real and personal estate shall
> vest in the Public Trustee until the grant of administration."
>
> Likewise if there is a will, but on the testator's death or before
> probate is granted there ceases to be an executor available. Section
> 9 (2).
>
> Note that this only applies where there is no executor. If there is
> an executor, why does section 9 not make equivalent provision for the
> Public Trustee to own the estate while he applies for probate?
> Because it's not necessary. Because the executor has the legal
> ownership from the time of death onwards, and it's only necessary to
> cope with the situations where there is no executor.

I suspect it's actually because someone needs to be appointed as
personal representative eventually, otherwise the estate does not get
administered, and no-one can be appointed unless there is someone who
can authorise that person to be appointed. Section 9 in my view gives
the Public Trustee the right to nominate that person which no-one would
have otherwise.

While there is a potential executor in the picture, however, devolving
the estate to any party is unnecessary since his right to apply for
Probate is certain and comes from the Will itself. There is accordingly
no need for the Public Trustee to own the estate or be involved; it can
just remain as 'the estate', owned by no-one pending his application for
Probate.

[Norman Wells]

Mark Goodge wrote:
> On Sun, 24 Mar 2013 13:55:09 +0000, Norman Wells put finger to
> keyboard and typed:
>
>> Tim Jackson wrote:
>>> On Sun, 24 Mar 2013 11:05:02 +0000, Chris R wrote...
>>>>> "GB" wrote in message
>>>>> news:514df8af$0$1139$5b6a...@news.zen.co.uk...
>>>
>>>> And does it matter anyway, if the liability is to be
>>>> discharged out of the assets of the estate?
>>>
>>> Exactly.
>>
>> Who says that it will be discharged out of the assets of the estate?
>> The argument here, which I have been arguing against, is that the
>> executor owns the property as soon as the person dies. If that is
>> the case, why shouldn't the person who falls down the manhole sue the
>> executor named in the Will personally as owner of the property,
>> whether or not he has been granted or even applied for Probate?
>
> He can. But you can always renounce executorship if you want to, and
> doing so will absolve you of any liability that might otherwise
> entail.

Why? Others here say that he owned the property, and in my scenario,
he's being sued as the owner, not as 'the estate'.

>> And if he's
>> awarded, say, a million pounds, why should that be limited by the
>> value of the estate which may be, say, only a hundred thousand
>> pounds?
>
> It's unlikely that a court would award more than the value of the
> estate.

Why? He's being sued as the owner, which is distinct from anything to
do with the estate.

>> It seems inherently unfair to me and contrary to natural justice that
>> you can become personally liable for something just because you've
>> been nominated as an executor in someone else's document, when you
>> may in fact be totally unaware that you have been, and never had any
>> intention of taking it up. Doesn't it to you?
>
> Up to a point, yes. But that's the way the system works.

I disagree entirely. If you have responsibility for something then you
must have agreed to it explicitly or implicitly.

> The presumption that the law must, of necessity, be fair is one that I
> would not expect any regular user of this group to make.

It is, however, a fundamental principle of construction of statutes that
an interpretation that leads to absurd results is an incorrect one if an
alternative interpretation exists that does not do so.

The imposition of obligations on someone merely by a third party signing
a document of which the person obligated may even be unaware, and to
which he was certainly not a party, is not an interpretation that any
court here would uphold.

The law is at least that fair.

[Norman Wells]

Tim Jackson wrote:
> On Sun, 24 Mar 2013 15:05:02 +0000, Norman Wells wrote...
>
>> He accepted no responsibility as
>> regards the estate, but merely disposed, perfectly legally, of
>> property that others here say was his from the time of death.
>
> His duties to account to the beneficiaries also arise at the time of
> death.

Do they now? You see, I'm of the view that you can't just be lumbered
with responsibilities on someone else's say-so, even in a Will. It must
be _my_ choice to accept those responsibilities surely.

If I own the property from the time of death, as some here say, it means
I have the personal obligations and responsibilities that go with
ownership, including possibly unlimited liability to third parties
falling down a manhole as we've discussed. But I may not know that I am
named as executor, I may not know that I own and am responsible for the
property, and I could certainly do nothing to prevent anything untoward.
How is that not contrary to natural justice and all that we hold dear in
this glorious free country of ours?

> If he wants to renounce his executorship, he has to do so before he
> has taken any kind of action with respect to the estate. He can't
> renounce once he has started to act. He can't accept the ownership
> aspects but abdicate the responsibilities that go with them.

Likewise, I say he cannot be lumbered with the responsibilities unless
he accepts the ownership. Yet that is precisely what happens if, as
others say, he becomes the owner immediately on the death.

In my interpretation of the law both happen simultaneously, which I
think you accept is right and proper. And the timing of that is when
Probate is granted, not at the moment of death. It has to be.

[Norman Wells]

Tim Jackson wrote:
> On Sun, 24 Mar 2013 12:30:02 +0000, Norman Wells wrote...
>> The problem is that I haven't been referred to any law or cases that
>> actually establish what you both claim. On the contrary, the law to
>> which I've been referred seems to support my view that an executor
>> does not own the deceased's property until the court has appointed
>> him as such through teh grant of Probate.
>
> You've been referred to Section 1 of the Administration of Estates Act
> 1925. It says that real estate devolves **on the death** of the
> deceased person on the personal representative.

Well, what it actually says is:

"shall on his death .... devolve from time to time on the personal

representative".

What 'from time to time' means in that context is open to debate. I say
it is reasonable to interpret it as meaning sometime when you actually
have a personal representative, which I say is not at the moment of
death but on the grant of probate. Any earlier leads to the anomaly of
having responsibility for the estate before you even know you own it.

>> Perhaps you'd like to address the point that if, as you claim, the
>> executor named in the Will owns the property immmediately on death,
>> he could theoretically sell off all the property of the deceased
>> perfectly legally but then decline to act as the executor, keeping
>> the
>> proceeds for himself. What is to stop him? It's his property.
>
> This is called "intermeddling". Someone who has intermeddled cannot
> then renounce his executorship.
>
> Furtermore, the beneficiaries of the will could sue him. While the
> executor may have legal ownership, he also has duties to the
> beneficiaries to get in the estate and to account to them for it.

Fair enough. Point taken and accepted.

It still doesn't deal with ownership/responsibility timing problem
though.

[Norman Wells]

Mark Goodge wrote:
> On Sun, 24 Mar 2013 15:05:02 +0000, Norman Wells put finger to
> keyboard and typed:
>

> That is correct. A person named as executor can, provided he has not
> already started to act as executor, renounce the executorship, and
> cannot be prevented from doing so. But what he can't do is start to
> act as an executor and then change his mind later.

Fair enough. I'd make the point though that he doesn't have to do
anything at all. He doesn't have to apply for Probate, nor does he have
to renounce his right. If he chooses to do nothing, or even after some
time renounces his right, what legal principle previously made him
either the owner of the property or responsible for it? He has accepted
neither.

If he was not the owner of the property, who if anyone was? And again,
by what legal principle?

[Norman Wells]

Tim Jackson wrote:
> On Sun, 24 Mar 2013 14:25:02 +0000, Mark Goodge wrote...
>>
>> On Sun, 24 Mar 2013 09:15:03 +0000, Norman Wells put finger to
>> keyboard and typed:
>>>
>>> No, that derives from the grant of Probate which appoints him as
>>> executor.
>>
>> That is comnpletely back to front. It is the executor who applies
>> for, and obtains, Probate, not Probate which appoints the executor.
>
> From the Latin "probare", to prove. The executor applies to the court
> in order to prove the will, and to prove that he has been appointed
> executor by the will. The grant of probate is a document in which the
> court says "yes, we're satisfied it's been proven".

What I say is that applying for Probate is an acceptance, for the first
time, of the position of executor if granted. Before that, there is no
acceptance of the status of executor, no acceptance of ownership of the
property and certainly no acceptance of the responsibilities and
liabilities that ownership of that property entail. I fail to see how
anyone can be an executor, own the property or have responsibility for
it, quite possibly unwittingly, _unless_ they have accepted, which
means, at the earliest, when they apply for Probate.

[Norman Wells]

Chris R wrote:
>> "Norman Wells" wrote in message
>> news:0OB3t.228087$Dm1.1...@fx01.fr7... Francis Davey wrote:

'from time to time'. We need an interpretation of what that means.

> upon the personal representatives *on his death*. Not later.

I say you don't actually have any personal representatives until Probate
has been granted, and that Section can't be effective until you do. I
think it's a reasonable interpretation of 'from time to time' that it
covers just such a situation.

> On his death. Section 9
> says that where there are no executors, including on intestacy, the
> property vests temporarily in the Public Trustee (it used to be the
> President of the Family Division, and before that the Bishop) until
> letters of administration are granted. That is because, unlike
> executors, administrators only take office from the date of grant.
> Executors take office from the date of death. But once administrators
> are appointed, the vesting of the property takes effect
> retrospectively to the date of death. Section 9 does not apply when
> there are executors because the property vests in the executors from
> the date of death under section 1 - there is no need to "warehouse"
> it with the Public Trustee until the grant of probate.

In my interpretation, there's no need to warehouse it with the Public
Trustee because there's still a potential executor in the wings who can
act without vesting the property in anyone.

> Megarry & Wade, to which my learned friend referred earlier, in my
> trusty 1975 edition, explains that until 1898, land vested in the
> heirs immediately upon death, but the 1925 Act changed the rules for
> land so that they were broadly the same as for personal property, ie
> "If an executor was appointed, the the property vested in him from
> the moment of death, although it was necessary to for him to confirm
> his position by by obtaining probate of the will." And elsewhere,
> "The executor derives his powers from the will, although he must
> obtain confirmation of his position by proving the will, ie obtaining
> a grant of probate".

Well, that's as clear as mud.

The situation we are discussing is what happens if he does not confirm
his position, ie he does not apply for Probate, or even renounces his
right to be the executor. Did the property belong to him from the time
of death or not? Did he have responsibility for it from the time of
death or not? If you say he did, by what legal principle when he may
even have been totally unaware of the situation? If he did not own the
property or have responsibility for it, then who if anyone did, and by
what legal principle?

Suppose alternatively that he does eventually apply for Probate and it
is granted. Did he own the property from the time of death? If so,
what rights did he have over the property until he obtained grant of
Probate? If all of them that go with ownership why did he have to
confirm his position? What couldn't he do before that he could do
afterwards? If none of them, how is that any different from not having
ownership?

[Mark Goodge]

On Sun, 24 Mar 2013 18:00:05 +0000, Norman Wells put finger to keyboard and

typed:

>Mark Goodge wrote:
>> On Sun, 24 Mar 2013 15:05:02 +0000, Norman Wells put finger to
>> keyboard and typed:
>>
>> That is correct. A person named as executor can, provided he has not
>> already started to act as executor, renounce the executorship, and
>> cannot be prevented from doing so. But what he can't do is start to
>> act as an executor and then change his mind later.
>
>Fair enough. I'd make the point though that he doesn't have to do
>anything at all. He doesn't have to apply for Probate, nor does he have
>to renounce his right. If he chooses to do nothing, or even after some
>time renounces his right, what legal principle previously made him
>either the owner of the property or responsible for it?

The law made him responsible.

> He has accepted
>neither.

The idea that the law only imposes a duty on you if you accept it is common
in some circles. However, it has no justification in fact.

[Mark Goodge]

On Sun, 24 Mar 2013 17:25:02 +0000, Norman Wells put finger to keyboard and
typed:

>Tim Jackson wrote:
>> On Sun, 24 Mar 2013 15:05:02 +0000, Norman Wells wrote...
>>
>>> He accepted no responsibility as
>>> regards the estate, but merely disposed, perfectly legally, of
>>> property that others here say was his from the time of death.
>>
>> His duties to account to the beneficiaries also arise at the time of
>> death.
>
>Do they now? You see, I'm of the view that you can't just be lumbered
>with responsibilities on someone else's say-so, even in a Will. It must
>be _my_ choice to accept those responsibilities surely.

On the contrary, there are all sorts of situations where you can be
lumbered with responsibilities as the result of someone else's actions over
which you have no control. Fly-tipped waste, for example, is the legal duty
of the landowner to dispose of correctly, even though the fly-tipper broke
the law by leaving it there. If a 13-year old girl successfully deceives
you into believing that she is 16 and you engage in sexual activity with
her, then you have broken the law even though you were entirely ignorant of
having done so. If you are a pharmacist and you supply prescription drugs
on the basis of a forged prescription then you are guilty of an offence
even if you had no reason to believe that the prescription was forged.

You may well believe that any, or all, of these are unjust. And many people
may well agree with you. But your belief does not change the law.

[Mark Goodge]

On Sun, 24 Mar 2013 16:55:09 +0000, Norman Wells put finger to keyboard and

typed:

>Mark Goodge wrote:
>> On Sun, 24 Mar 2013 13:55:09 +0000, Norman Wells put finger to
>> keyboard and typed:
>>
>>> Tim Jackson wrote:
>>>> On Sun, 24 Mar 2013 11:05:02 +0000, Chris R wrote...
>>>>>> "GB" wrote in message
>>>>>> news:514df8af$0$1139$5b6a...@news.zen.co.uk...
>>>>
>>>>> And does it matter anyway, if the liability is to be
>>>>> discharged out of the assets of the estate?
>>>>
>>>> Exactly.
>>>
>>> Who says that it will be discharged out of the assets of the estate?
>>> The argument here, which I have been arguing against, is that the
>>> executor owns the property as soon as the person dies. If that is
>>> the case, why shouldn't the person who falls down the manhole sue the
>>> executor named in the Will personally as owner of the property,
>>> whether or not he has been granted or even applied for Probate?
>>
>> He can. But you can always renounce executorship if you want to, and
>> doing so will absolve you of any liability that might otherwise
>> entail.
>
>Why? Others here say that he owned the property, and in my scenario,
>he's being sued as the owner, not as 'the estate'.

He's being sued as the owner, but, provided he hasn't done anything with
the property, he can renounce ownership. Having done so, it will be the new
owner who takes on the responsibilities of the property.

[Francis Davey]

Ok. I really honestly don't know if Norman actually wants to know about this, or whether this is just trolling, but I will assume good faith.

A lot of questions have been asked about "what if" situations that would require a thorough run through of the laws of probate and I don't have time to go into them all. I suggest reading a good book on the subject - there's rarely a substitute for that.

But getting back to the property situation, try "Wills, Administration and taxation: a practical guide" by Barlow, King & King. In my (old) 8th edition at 11.005 "Powers of Personal Representatives before Grant", I have one of the clearest and easiest explanations of the point.

There is a distinction between administrators and executors (which is why the 1925 Act uses the language it does, but I digress...). So Barlow et al have:

"The authority of an administrator derives from _the grant_. The powers of an administrator before the grant is made are therefore very limited". It goes on to explain that before grant an administrator may not bring an action, vest property and so on before the grant. Obtaining a grant afterwards is no use.

This is unsurprising because if there is no qualified executor (as there would not be if there were to be an administration) the property vests in the Public Trustee, see:

http://www.legislation.gov.uk/ukpga/1994/36/section/14

There's a considerable information about the role the Public Trustee occupies online.

As for executors, Barlow et al go on to say:

"The power of an executor derives from _the will_ of the deceased and not from the grant which merely confirms his authority. An executor can therefore in principle exercise all his powers without obtaining a grant. An executor can sue or be sued before obtaining a grant. If he bring an action (for example against a creditor) the action is valid even though no grant has been issued."

A grant is required for many purposes, eg entering of judgment, as proof to many people involved in any transaction (including the land registry) and so on. Even though the executor may be the owner, someone in possession of property that they own may demand some proof of that fact.

So, a grant serves two purposes: (i) it is evidence of the executor's status which they can show to others (see below) and (ii) it is conclusive evidence as to the terms of the will.

Personal representatives have a fiduciary duty but are not trustees. What this means is that they own the property (fine) but beneficiaries etc can bring against them a claim of devastavit if they mismanage the property. They aren't trustees because the beneficiaries don't have an identified interest yet (for obvious reasons the estate may not be solvent or may not be able to meet legacies and so on), see (eg) Commissioner of Stamp Duties (Queensland) v Livingston.

Another point that has come up asked by several people is what if a grant is revoked? Eg, if a later will is discovered. This is where s.27 of the 1925 Act comes in:

http://www.legislation.gov.uk/ukpga/Geo5/15-16/23/section/27

and - in my view - is the main reason for getting a grant of probate. It means that if you act under a grant which is later revoked you don't have to worry about being liable for those actions (assuming you did so honestly etc). If you go ahead and administer an estate in the mistaken belief you were appointed executor (because of the last minute will in your grandfather's desk etc) then you are in trouble [you would be an executor de son tort and liable in devastavit amongst other things].

Similarly anyone dealing with you will want to see a grant for the same reason.

But do read a good book on the subject. M&W is excellent on general property law, but something like Barlow more useful for practical probate stuff.

Francis

[Mark Goodge]

On Sun, 24 Mar 2013 18:35:02 +0000, Norman Wells put finger to keyboard and
typed:

>Chris R wrote:
>>
>> All right, I'll rise to it one last time. Section 1 AEA 1925 says
>> that real property of the deceased devolves
>
>'from time to time'. We need an interpretation of what that means.

In this context, it's an archaic phrase meaning that an event is repeatable
rather than a one-off. It's relevant here because the same item of property
can be inherited more than once when successive owners die, so the law
makes it clear that the same process happens every time and not just the
first.

I found the phrase being used in a similar context, albeit different
legislation, in a Commons debate in 1949:

http://www.theyworkforyou.com/debate/?id=1949-03-22a.280.2

In that case, the meaning is clear from the context: the speaker considers
it important that a particular responsibility transfers every time there is
a change of office holder rather than terminating.

The modern colloquial meaning of "every now and then", meaning a randomly
occurring event, has the same etymology as the phrase used here but it not
what is intended by the legislation.

>> upon the personal representatives *on his death*. Not later.
>
>I say you don't actually have any personal representatives until Probate
>has been granted, and that Section can't be effective until you do.

You appear to be disagreeing, not just with a bunch of other non-lawyers,
but also with some people who have had formal training in this area and
with the text of the statute itself. Given that, ultimately, the law is
what a court decides is the law, and the court is overseen by those who
also have formal training in the law, I think it would be most inadvisable
to rely on your interpretation should it ever come to a dispute.

>> Megarry & Wade, to which my learned friend referred earlier, in my
>> trusty 1975 edition, explains that until 1898, land vested in the
>> heirs immediately upon death, but the 1925 Act changed the rules for
>> land so that they were broadly the same as for personal property, ie
>> "If an executor was appointed, the the property vested in him from
>> the moment of death, although it was necessary to for him to confirm
>> his position by by obtaining probate of the will." And elsewhere,
>> "The executor derives his powers from the will, although he must
>> obtain confirmation of his position by proving the will, ie obtaining
>> a grant of probate".
>
>Well, that's as clear as mud.

It makes perfect sense to me. And I'm not even a lawyer. Essentially, what
it's saying is that the executor is the owner of the property from the
moment of the deceased's death, but that he then needs to prove to the
satisfaction of a court that he is the owner before he can do anything with
the property. In other words, Probate does not make him the owner, it
merely confirms that he is the owner.

>The situation we are discussing is what happens if he does not confirm
>his position, ie he does not apply for Probate, or even renounces his
>right to be the executor. Did the property belong to him from the time
>of death or not?

Yes.

>Did he have responsibility for it from the time of
>death or not?

Yes.

> If you say he did, by what legal principle when he may
>even have been totally unaware of the situation?

By statute. Specifically, the Administration of Estates Act 1925.

You seem to be concerned about the possibility of someone being appointed
as an executor without his knowledge, and then finding himself unavoidably
liable for costs incurred by the property of which he was unaware. This is,
however, not possible. If he is genuinely unaware of the executorship, then
he can formally renounce it as soon as he does become aware of it. And that
renunciation will have effect retrospectively: it will be as if he had not
been an executor at all (and hence he cannot be liable for any costs
incurred). He can only become liable if he starts to act as an executor,
and he cannot start to act as an executor without knowing that he is acting
as an executor.

What is a possibility is that someone may be appointed as an executor
without their foreknowledge (say, by a friend or relative who simply forgot
to tell them about it), and may, when informed of it following the death of
the testator, begin to act as an executor in good faith and only later
discover that there is some issue with the estate for which he is now
personally liable. That is extremely unlikely, but it is nonetheless
possible. But that's why professional executors, such as solicitors,
usually have insurance against such an eventuality. And it's why
non-professionals should, if they ever find themselves unexpectedly being
appointed as an executor, take legal advice and consider immediate
renunciation unless they are sure that it will pose them no problems.

[Norman Wells]

Mark Goodge wrote:
> On Sun, 24 Mar 2013 18:00:05 +0000, Norman Wells put finger to
> keyboard and typed:
>
>> Mark Goodge wrote:
>>> On Sun, 24 Mar 2013 15:05:02 +0000, Norman Wells put finger to
>>> keyboard and typed:
>>>
>>> That is correct. A person named as executor can, provided he has not
>>> already started to act as executor, renounce the executorship, and
>>> cannot be prevented from doing so. But what he can't do is start to
>>> act as an executor and then change his mind later.
>>
>> Fair enough. I'd make the point though that he doesn't have to do
>> anything at all. He doesn't have to apply for Probate, nor does he
>> have to renounce his right. If he chooses to do nothing, or even
>> after some time renounces his right, what legal principle previously
>> made him either the owner of the property or responsible for it?
>
> The law made him responsible.
>
>> He has accepted
>> neither.
>
> The idea that the law only imposes a duty on you if you accept it is
> common in some circles. However, it has no justification in fact.

The law of course imposes duties on everyone. The question, however, is
whether mere naming in a Will can. I say it can't.