Practice Guide 6 – Devolution on the death of a registered proprietor

Updated: April 2013

Update

This edition of the guide replaces the October 2011 edition. The explanation of the effect of a Form A restriction at section 7 has been expanded and the guidance on the removal of a Form A restriction at section 8 has been amended.

Scope of this guide

This guide deals with applications associated with the death of a joint, sole or last surviving proprietor of a registered estate, or of a charge or mortgage. It is aimed at conveyancers, and you should interpret references to ‘you’ accordingly.

1 Introduction

This guide sets out the evidence required for applications relating to the death of a registered proprietor and deals with registered estates only. However, under s.4, Land Registration Act 2002, you will need to apply for first registration of an unregistered estate that is the subject of a transfer or assent. For further details, see Practice Guide 1 – First registrations.

2 Terms used

In this guide:

‘conveyancer’ means an authorised person within the meaning of s.18, Legal Services Act 2007 who is entitled to provide the conveyancing services referred to in paragraphs 5(1)(a) and (b) of Schedule 2 to that Act, or a person carrying out those activities in the course of their duties as a public officer. It also includes an individual or body who employs or has among their managers such an authorised person who will undertake or supervise those conveyancing activities (r.217A, LRR 2003).

3 Death of a sole proprietor (or sole surviving proprietor) of a registered estate or of a charge or mortgage

3.1 Registration of the personal representatives

To make an application to Land Registry to register the personal representatives of a sole registered proprietor of a registered estate or of a charge or mortgage, you will need to send us the following.

• Application form AP1.

• Evidence of the grant of representation, which should be either the original or official copy of the grant of probate or letters of administration (we will return this to you) or a certificate confirming that you hold the original or an official copy of the same.

• The fee payable under the current Land Registration Fee Order.

Once they are registered as proprietors, the personal representatives can later transfer or assent the estate, or the charge or mortgage. See section 3.2 Registration of a disposition by the personal representatives.

3.2 Registration of a disposition by the personal representatives

The personal representatives of a deceased sole proprietor of the registered estate, or of a charge or mortgage, may, without first being registered themselves in that capacity, deal with that registered estate or charge. They may do this by way of a transfer, or a transfer by way of an assent or appropriation using the appropriate form in either case. To make an application to us you will need to send us the following.

• Form AP1 (form FR1 if the transfer or assent triggers first registration).

• Either transfer form TR1, or TP1 (if you are only selling part of the registered estate), or assent form AS1, or AS3 (if only part of the registered estate is the subject of the assent).

• Either transfer form TR4 (if the deceased was proprietor of a charge or mortgage) or assent form AS2.

• The original probate or letters of administration, or a court order appointing the transferor as the deceased’s personal representative, or (where a conveyancer is acting for the applicant) a certificate given by a conveyancer that they hold the original or a certified copy of the probate, letters of administration or court order. We will not need this evidence if the personal representatives are already registered as proprietors in that capacity.

• The fee payable under the current Land Registration Fee Order.

NB1: Any transfer by the personal representative(s) to the beneficiaries should be accompanied by a stamp duty land tax self-certificate.

NB2: For the vesting of registered estates in a new tenant for life where there is a settlement under the Settled Land Act 1925, use form AS1 or AS3 as appropriate. Add the following provisions, with any necessary alterations and additions, to the additional provisions panel.

“The Personal Representative and the Recipient declare that:

a the Property is vested in the Recipient upon the trusts declared in the will of (name of deceased) proved on (date);

b the trustees of the settlement are (names of trustees);

c the power of appointment of new trustees is vested in (name);

d the following powers relating to registered estates are expressly conferred by the will in addition to those conferred by the Settled Land Act 1925: (set out additional powers).”

You should also make an application for the proper restriction using form RX1. The special grant must be lodged in support.

3.3 Discharge of a charge or mortgage of which the deceased was the sole proprietor

The personal representatives of a deceased sole proprietor of a charge or mortgage may, without first being registered themselves in that capacity, wish to apply to cancel the registration of the charge or mortgage after it has been discharged. To make an application to us you will need to send us the following.

• Form AP1 or form DS2.

• Form DS1 (where all the registered estate is released from the charge or mortgage).

• Form DS3 (where the charge or mortgage is discharged as to only part of the registered estate).

• The original grant of probate or letters of administration (we will return this to you), or a certificate given by the conveyancer that they hold the original or an official copy of such grant of probate or letters of administration.

No fee is payable.

4 Death of a joint proprietor of a registered estate or of a charge or mortgage

If you need to apply to us to withdraw the name of a deceased joint proprietor of the registered estate or of a charge or mortgage from the register, you will need to send us the following.

• Form DJP.

• Evidence of death, either:

No fee is payable.

5 Liability for death duties

Where the proprietor of a registered estate died before 13 March 1975 and it appeared that the registered estate was subject to a charge for death duties, we used to make the following entry in the register as a matter of course.

“Until the registration of a disposition in favour of a purchaser for money or money’s worth, the land is liable to such death duties as may be payable or arise by reason of the death of A.B. of [address] who died on [date].”

We automatically cancel this entry upon the registration of a transfer of the registered estate on sale or other disposition for value. However, you can apply to cancel it at any time by lodging form CN1 completed by the Commissioners of HM Revenue & Customs.

6 Liability for capital transfer tax

When inheritance tax is due to the Commissioners of HM Revenue & Customs, a statutory charge in their favour is imposed on the registered estate that is the subject of the gift. The Commissioners can, when they so wish, apply using form AN1 to protect this charge by entering in the register an agreed notice under rr.80 and 81, Land Registration Rules 2003 as follows.

“Notice of an Inland Revenue charge (Reference number ______ ) in respect of such tax as may arise .”

Where appropriate, we may also make such an entry at the time of first registration of the estate.

When such an entry appears in the register we will only cancel it upon receipt of form CN1 completed by the Commissioners of HM Revenue & Customs. If the Commissioners have certified in the form CN1 that the application for cancellation is only to take effect upon the registration of a disposition to a purchaser, then we will remove the entry from the register only when the form CN1 is accompanied by a proper application to register the transfer, or other specified disposition, in favour of the purchaser. The entry will remain in the register even upon the registration of a transfer on sale until we receive a form CN1 completed by the Commissioners.

On application for first registration not based on a disposition for value and where a gift has been made within eight years of the date of the application, where no charge is disclosed and no class D(i) land charge is registered, consideration will be given as to whether any liability to capital transfer tax or inheritance tax has arisen.

If it appears from the application that the property being registered may be subject to a charge for inheritance tax we will inform you that we intend to make the following entry in the register.

“Notice of the possibility of an Inland Revenue charge in respect of such inheritance tax as may arise as a result of the death of _____________ who died on _________________.”

However, if you set out in writing details of the surrounding circumstances of the case and confirm that either no inheritance tax was ever payable, or that it has been paid in full, the entry will not be made. Alternatively, you can supply a certificate of discharge from the Capital Taxes Office, or a letter from the Capital Taxes Office addressed to the registrar confirming the same.

7 Trusts

Where land is held on trust a restriction in standard Form A or an earlier equivalent may have been entered in the register. The Form A restriction reads:

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

An application to register a disposition under which capital money arises made by a sole surviving proprietor will be caught by an existing Form A restriction. Because only the beneficial interest passes on the death of a joint proprietor to their personal representatives this will be the case even if the personal representatives act with the surviving proprietor. Where the land continues to be held on trust a second trustee should be appointed to act with the surviving proprietor. This is in contrast to a disposition by the personal representatives of a sole surviving proprietor. Here the legal estate vests in the personal representatives on the death of the sole proprietor (s.1(1), Administration of Estates Act 1925). Provided there are at least two personal representatives, a disposition will not be caught by the restriction.

If following the death of a joint proprietor a sole surviving proprietor has become the sole beneficial owner, consideration should be given to applying to cancel any existing Form A restriction – see section 8 Removal of a restriction in Form A from the register. A Form A restriction will be cancelled automatically only when a transfer which overreaches any interests under a trust is registered. Where there has been no such transfer but any trusts on which the land was held have come to an end, applying to cancel the restriction at the earliest opportunity may avoid problems arising on a future disposition when the necessary evidence is no longer readily available.

8 Removal of a restriction in Form A from the register

Application for cancellation of the restriction should be made in form RX3 accompanied by evidence of the equitable title to show that the sole survivor has become the sole beneficial owner.

The evidence we usually accept is a statutory declaration or statement of truth (see Practice Guide 73 – Statements of truth) by the sole surviving proprietor which shows how they have become the sole beneficial owner by:

• explaining what has happened to the beneficial interest protected by the restriction
• if it has devolved to the surviving proprietor, explaining how it has so devolved
• confirming, if such be the case, that no one other than the registered proprietor now has a beneficial interest in the property
• confirming, if such be the case, that no beneficial interest in the property has been encumbered (other than by a charge that is also of the legal estate).

Instead of a statutory declaration or statement of truth, we will accept a certificate to this effect from the conveyancer acting for the surviving proprietor if they are able to speak from personal knowledge of the facts. Alternatively a court order requiring the registrar to cancel the restriction may be lodged.

No fee is payable.

If all the registered proprietors have died, the personal representatives of the last surviving proprietor can make a similar application adjusting the terms of the statutory declaration, statement of truth or certificate according to the requirements of the case.

9 General information

9.1 Fees

You can pay by cheque or postal order made payable to ‘Land Registry’. In addition, if you visit one of our offices you may also pay by cash or credit/debit card.

9.2 Forms

All the forms mentioned in this guide are available from law stationers, or you can download them free of charge from our website – see Contact details for our website address.

9.3 Where to send your application

You will need to send your application to the Land Registry office that deals with the area in which the registered estate is situated. You can find this information on our website or by telephoning Customer Support (see Contact details). Practice Guide 51 – Areas served by Land Registry offices also contains this information. Please note that under r.15, Land Registration Rules 2003, applications are not deemed to have been received until they reach the proper office.

9.4 Keeping the register up to date

Please make sure that the details of the registered proprietor of the registered estate or of a charge or mortgage are always kept up to date. An out-of-date address may mean they do not receive important notices from Land Registry. Under r.198, Land Registration Rules 2003, the registered proprietor must always provide a postal address, which can be either a UK or an overseas address. They may also have up to two further addresses in the register, which can include an email, a UK DX or a postal (either UK or overseas) address. See Public Guide 2 – Keeping your address for service up to date for more information.

9.5 Enquiries and comments

If you have a particular concern that is not covered by this guide, please contact us in advance of the transaction. If the transaction is particularly complex it may be better if you make your enquiry in writing at the Land Registry office that will process your application – see section 9.3 Where to send your application.

If you have any comments or suggestions about our guides, please send them to:

Central Operations Group
Land Registry
Trafalgar House
1 Bedford Park
Croydon
CR0 2AQ

(DX 8888 Croydon 3)

You can obtain further copies of this and all our guides free of charge from Customer Support (see Contact details) or you can download them from our website.

Remember

Before sending your application to us have you:

• enclosed the correct forms?

• enclosed the correct fee?

• enclosed evidence of the grant of representation/death?

• enclosed a form RX3 when applying to remove a restriction in Form A?

• enclosed evidence of the equitable title when applying to remove a restriction in Form A?

• identified the proper Land Registry office?

Important: please check clerical details in all forms, such as the property description, title number and dates. In particular, check the full names of the parties where they appear in more than one place, such as, the names of the personal representatives/ beneficiaries in the grant of representation and the transfer/assent.

Please note that we may be unable to process applications that are incomplete or defective and your application will risk losing its priority if we have to return it to you – see Practice Guide 49 – Return and rejection of applications for registration for more information.