Appropriation of Assets UK: Executor’s Power Under Section 41 AEA 1925

Updated 31 May 2026 · 9 min read · Probate & Estate Administration

When administering an estate, an executor does not have to sell every asset and pay beneficiaries in cash. Section 41 of the Administration of Estates Act 1925 gives every personal representative the power to appropriate — to allocate a specific estate asset to a beneficiary in satisfaction of their entitlement. Understanding how the power works, what consents it requires, and what valuation rules apply is essential for executors managing estates that include shares, investment portfolios, or property a beneficiary wishes to keep.

What Is Appropriation?

Appropriation is the formal allocation of a specific asset from an estate to satisfy a beneficiary’s pecuniary legacy or share of residue. Instead of the executor selling the asset and handing over the net cash proceeds, the asset itself — a parcel of shares, a property, a bond — is transferred to the beneficiary at an agreed value, with that value set against what the estate owes them.

Before the Administration of Estates Act 1925 codified the power in section 41, appropriation required either an express power in the will or the agreement of all beneficiaries. Section 41 makes the power automatic, available to every personal representative in England and Wales without needing any specific will clause — though many professionally drafted wills do include an extended appropriation clause to remove the consent requirements that the statute would otherwise impose.

Consent Requirements

The statutory power under section 41(1) AEA 1925 generally requires the written consent of the beneficiary whose share is being satisfied by the appropriation. The rules vary by beneficiary type:

• Adult beneficiary with capacity: must consent in writing before the appropriation is made
• Minor or person lacking mental capacity: consent is given by the parent, guardian, or Court of Protection
• Life tenant: both the life tenant and the remaindermen must consent, because the choice of asset affects what will ultimately pass on the life tenant’s death
• Beneficiary under a discretionary trust: the trustee exercises discretion; the individual discretionary objects have no consent right as such

Many wills contain a clause expressly dispensing with the need for consents under section 41. Where such a clause exists, the executor can appropriate without obtaining the beneficiary’s agreement — but still owes a duty to act in the interests of all beneficiaries and must value correctly.

Valuation at the Date of Appropriation

Section 41(3) AEA 1925 requires the appropriated asset to be valued at the date of appropriation, not the date of death. This has important practical consequences:

• If shares worth £80,000 at death have risen to £100,000 by the time of appropriation, the beneficiary’s legacy entitlement is satisfied by £100,000 worth (not £80,000 worth) of those shares
• If those same shares have fallen to £60,000, the beneficiary receives more shares (in quantity) to make up the shortfall to their legacy entitlement
• Once the appropriation is made, the beneficiary bears all subsequent price risk — the executor has no further obligation if the asset falls after the transfer

For listed securities, the mid-market price on the date of appropriation is used. For property or unlisted shares, an independent professional valuation is required. An executor who values incorrectly — giving a residuary beneficiary less than they are owed, or a pecuniary legatee more — is personally liable for the shortfall.

Appropriation by an Executor Who Is Also a Beneficiary

Section 41(7) AEA 1925 permits an executor-beneficiary to appropriate an estate asset to themselves but only with additional safeguards. If there are co-executors, all co-executors must consent. If the executor is sole, they must obtain the consent of a beneficiary with a prior or equal interest. This prevents an executor from cherry-picking the most valuable or most attractive estate assets for their own benefit.

Courts apply the no-profit rule strictly: an executor who appropriates an asset to themselves at an undervalue, or whose self-appropriation later turns out to have been at a price significantly below market value, can be ordered to account to the estate for the difference. The transaction is voidable at the instance of any beneficiary who suffers loss.

Tax Consequences of Appropriation

For capital gains tax, an appropriation by a personal representative to a legatee is not a disposal under section 62(4) TCGA 1992 — no CGT arises on the executor at the point of transfer. The beneficiary takes the asset at its market value as at the date of death as their acquisition cost for any future disposal. Any gain made within the estate before appropriation (e.g. shares sold by the executor and proceeds appropriated) is subject to CGT in the hands of the estate at 24%.

For stamp duty land tax, appropriations of property from a personal representative to a person entitled under a will or intestacy are generally exempt from SDLT under paragraph 3A of Schedule 3 to the Finance Act 2003. However, SDLT may arise if consideration (such as the beneficiary taking over the mortgage) is given, or where the appropriation involves more complex arrangements. Legal advice should be taken in such cases.

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