- 12 minute read
- Last updated: 16th August 2019
An assent of property is the transfer of legal ownership of property or land by the personal representative(s) of the estate of someone who has died to the beneficiary or beneficiaries.
This article covers:
- Is an assent of property necessary?
- Who can assent property?
- How to assent property?
- Pitfalls of using an assent in practice
- Seeking legal advice for an assent
Unlike transfers under the conveyancing process, there is no sale or purchase price under an assent. This is because an assent only applies where the property owner has died and the property forms part of their estate, gifted to a beneficiary or beneficiaries.
A deed of assent is the document used to transfer the property into the name of the transferee(s) with HM Land Registry, and establishes the beneficiary’s title to the asset or assets in question.
An assent of property or land must be given in writing. A written assent is not essential for other assets bequeathed to a beneficiary, although it is desirable because it confirms the date on which the beneficiary becomes the legal owner.
Whether or not an assent is necessary will depend on whether a property was held jointly with someone else or, rather, solely in the name of the deceased.
Deceased is a joint proprietor
Joint owners can hold their beneficial interest in property or land as joint tenants or as tenants in common. If an equitable joint tenancy exists, the beneficial interest of any joint owner will pass automatically on death to the surviving owner(s), although the title register would still need to be updated.
Where property is held under a tenancy in common, the deceased’s share does not automatically vest in the surviving owner(s). Rather, their share in the property would pass under the provisions of any written will or, if the deceased died intestate (ie; without a will), under the rules of intestacy.
However, as only the beneficial interest passes on the death of a joint proprietor to the deceased’s personal representatives, the transfer of legal ownership, or an assent, is not required.
If you are the surviving owner and sole beneficiary of a jointly owned property, or even one of several beneficiaries, for example, where you co-owned a property with your spouse who left their share equally between yourself and your grown-up children, legal advice should be sought as to how to proceed.
If you are a surviving owner of property or land, but a person not already named on the property title is due to inherit all of the deceased’s share, either under a written will or the rules of intestacy, again legal advice should be sought.
Deceased is the sole proprietor
In circumstances where property was solely in the name of the deceased, the legal estate vests in the personal representatives on the death of the sole proprietor. Accordingly, the personal representatives will need to deal with the transfer of the property to any beneficiary, or beneficiaries, by way of assent.
Similarly, on the death of a sole surviving joint owner, the last survivor will hold the land as sole legal and beneficial owner. Again, the personal representatives would need to use a deed of assent here.
Who can assent property?
Property can be assented by the personal representatives of the deceased’s estate. However, the personal representatives will first need to apply for what’s known as a Grant of Representation.
There are two different types of Grant of Representation: a Grant of Probate or Letters of Administration. These are the official documents proving legal entitlement to deal with the estate of someone who has died.
Where there is a written will, the named executor(s) can apply for a Grant of Probate. In the absence of a will, or valid will, the deceased’s next of kin can instead apply for Letters of Administration. The collective term “personal representatives” refers to the executors of a will, or the administrators where the deceased died intestate.
Once the grant has been obtained, the personal representatives will have the legal authority to deal with the property or land in question. This includes the authority to transfer the deceased’s property to any beneficiary, or beneficiaries, by way of an assent.
Form AS1 is the form to transfer the whole of one or more registered titles to the beneficiary or beneficiaries. By using this form, the ownership will change for all the land and property in the title.
A personal representative wanting to assent only part of a registered title to the beneficiary should use Form AS3. Other forms are also available for different circumstances, for example, Form AS2 for assent of a charge (ie; mortgage) where the deceased was a lender.
If there is more than one transferee, as joint owners they will automatically hold the property on a trust of land for themselves and/or anybody else who has a beneficial interest in the land.
When transferring or assenting property to more than one beneficiary, the personal representatives must state whether the property is to be held on trust as joint tenants or tenants in common. This is known as a declaration of trust.
If the joint transferees intend to hold the property on trust as tenants in common, but in unequal shares, details of this arrangement should also be provided, or reference made to any separate trust deed.
In addition to Forms AS1 or AS3, the personal representatives must also complete Form AP1, ie; an application to change the title register.
If land is unregistered, the personal representatives will need to apply for first registration of an unregistered estate that is the subject of an assent.
Unless it is made clear that the joint transferees intend to hold the beneficial interest on trust as joint tenants, for example, if the personal representatives fail to properly complete the assent form or lodge the relevant paperwork with HM Land Registry, a restriction will be entered on the title register by default.
The net effect is that the property will be held as tenants in common. This means that the last surviving tenant in common is not permitted to sell the property without proving that the trust has come to an end or appointing a new co-trustee. It will also affect how the share held by each beneficiary will be treated on death.
Assent and joint ownership is a complex area of the law that can create all sorts of legal and practical problems, not least in relation to how property or land is to be inherited.
When dealing with the estate of a deceased, it is often best to seek expert legal advice from a specialist in property and probate matters. Your solicitor can advise you on the most appropriate way to deal with the transfer of title, and whether an assent is needed.
Further, if the assent involves joint transferees, it is important to understand the implications of any declaration of trust and what that means for all those involved, not least in relation to how that property is divided and who may benefit from that share in the event of death.