Post-completion: Devolution on the death of a registered proprietor

This week, conveyancing post-completion experts Priscilla Sinder and Maria Hardy from the PCC Education Hub simplify the complex requirements of devolution on the death of a registered proprietor, with tips and examples. If you have any questions related to post-completion you’d like Priscilla and Maria to answer, email press@todaysconveyancer.co.uk.

This article intends to offer a very simplistic overview on a very complex area of the law. It relates to HM Land Registry’s requirements when transferring a property to a personal representative upon the death of a sole registered proprietor.

It has been written with tips along the way to reduce avoidable requisitions when submitting this type of application to HM Land Registry.

Registering the personal representative as the registered proprietor.

After the death of a sole, or sole surviving, proprietor the personal representative of the deceased can apply to become the registered proprietor in place of the deceased in their capacity as a personal representative under (section 1(1) of the Administration of Estates Act 1925)

The application type will be ‘transfer by operation of law on death’, and accompanying your application will be:

• A certified or office copy of the grant of probate/letters of administration (or a court order appointing the applicant(s) as the deceased personal representative(s)); and
• The appropriate fee.

TIP: chose the correct application, which is ‘transfer by operation of law on death’.

An appointment of a personal representative outside of the UK is not acceptable unless resealed by a UK probate court.

Once the personal representative is registered, they can later transfer, charge or mortgage the estate.

Does the personal representative need to be registered?

The personal representative does not need to be registered as proprietor to allow them to deal with the registered estate.

In this situation the personal representative could make an application to HM Land Registry to transfer the estate so long as the application includes;

• A completed application form;
• The appropriate transfer deed;
• A certified or office copy of the grant of probate/letters of administration; and
• The appropriate fee.

Form A restriction

One of the biggest requisition points is understanding when a form A restriction is overreached to allow the registration of the application to complete.

A form A restriction reads as follows:

“No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.”

This restriction makes sure that section 27(2) of the Law of Property Act 1925 is complied with, as amended by the Trusts of Land and Appointment of Trustees Act 1996 (section 25(1) and Schedule 3, paragraph 4), which reads as follows:

“…. the proceeds of sale or other capital money shall not be paid to or applied by the direction of fewer than two persons as trustees, except where the trustee is a trust corporation, but this subsection does not affect the right of a sole personal representative as such to give valid receipts for, or direct the application of, proceeds of sale or other capital money, nor, except where capital money arises on a transaction, render it necessary to have more than one trustee.”

In summary, a form A restriction should be entered whenever two or more people are registered as joint proprietors except where:

• The registered proprietors own the property as beneficial joint owners.
• They are personal representatives of the sole deceased registered proprietor, unless that proprietor was a trustee.

This obligation derives from section 44(1) of the Land Registration Act 2002, which reads as follows:

“If the registrar enters two or more persons in the register as the proprietor of a registered estate in land, he must also enter in the register such restrictions as rules may provide for the purpose of securing that interests which are capable of being overreached on a disposition of the estate are overreached.”

Tip: make sure ownership provisions are noted on your Transfer Deed so that HM Land Registry does not requisition the same or complete your application with an unwanted form A restriction (with the option of removing the same within 30 days).

Overreaching

The legal standing derives from section 2 of the Law of Property Act 1925, section 2(1), which reads:

“A conveyance to a purchaser of a legal estate in land shall overreach any equitable interest or power affecting that estate, whether or not he has notice thereof, if—”

The term is not defined but it is the principle whereby the interest of a beneficiary is attached to the value of the proceeds of sale rather than the land itself.

Hence why when the principle of overreaching applies the effect is that it overreaches any beneficial interest in the trust and attaches to the proceeds of sale releasing the trust from the land.

However, a common mistake is where there are two registered proprietors holding the property as tenants in common, but one registered proprietor has deceased leaving the remaining sole surviving registered proprietor and a personal representative appointed on behalf of the deceased. A transfer produced in this way cannot overreach Form A.

One may argue that the sole registered proprietor and the personal representative equate to two trustees, however a personal representative only assumes a beneficial interest of the deceased and not the legal title. Therefore, another trustee must be appointed to overreach the form A restriction.

This is a stark contrast to a disposition by the personal representative of a sole surviving proprietor where the personal representative is appointed on the death of the sole proprietor (section 1(1) of the Administration of Estates Act 1925) and provided there are at least two personal representatives, the form A restriction will not catch the disposition.

Removing a form A restriction

Any application to cancel a form A restriction should be made using a RX3 form and be accompanied by evidence to show that the sole survivor has become the sole beneficial owner, such as a statutory declaration or statement of truth.

The statement/declaration should explain;

• What has happened to the beneficial interest protected by the restriction,
• How/if it has passed to the surviving proprietor, confirm no one other than the surviving proprietor has a beneficial interest in the property,
• If there are still two or more registered proprietors confirm they hold the property on trust for themselves as beneficial joint tenants,
• No beneficial interest in the property has been separately mortgaged; and
• No beneficial owner is/was subject to a charging order or bankruptcy proceedings.

If all registered proprietors have died the personal representative of the last surviving proprietor can make a similar application, adjusting the terms of the statutory declaration/statement of truth accordingly.

Conclusion

This area of the law is complex but with an understanding of what overreaching means and when it can be applied should allow you to draft transfer deeds correctly, obtain correct supporting documentation pre-exchange and submit accurate applications for HM Land Registry.

Source of material: Practice guide 6: Devolution on the death of a registered proprietor

Licence: This content is available under the Open Government Licence v3.0

About the authors

Priscilla Sinder qualified as a solicitor in 2005 and began her career in private practice. She moved into an in-house role soon after qualification and was appointed as manager of residential conveyancing and then head of post-completion. With the diverse experience obtained she gained a role as a partner of a boutique property firm in central London, leading to her final role as a practicing solicitor in a large nationwide conveyancing firm as a director. Throughout her career she always noticed post-completion departments lacked resources and the attention they deserved. In a bid to change this, the seed for PCC was planted in 2017 where Priscilla embarked on a journey to change the way post-completion was viewed by the industry. This then gave rise to the birth of the Hub in 2024. Priscilla is also the author of Client Care in Conveyancing and co-author of Post-completion: A Conveyancer’s Guide to Process, Risk and Compliance, 1st Edition, published by the Law Society.

Maria Hardy is the company trainer and technical specialist at the PCC Education Hub. She has 20 years’ experience in the residential conveyancing profession, the majority of which has been spent focusing on post-completion duties. Maria started her career in 2005 after completing her LLB at the University of Newcastle upon Tyne. Prior to working at the hub, her early career was spent working in professional negligence, and from 2014 to 2023 Maria was head of post-completion and the compliance officer for a large residential conveyancing firm. She then became manager at PCC from 2023 – 2024. Maria’s vast experience allows her to specialise in post-completion, risk, compliance and training.