Assent of Property UK: How Personal Representatives Transfer Estate Assets

What Is an Assent? The Section 36 Framework

When a person dies, their property does not pass automatically to the beneficiaries named in their will or identified under the intestacy rules. Instead, it vests first in the personal representative — the executor named in the will, or the administrator appointed by the court where there is no will or no surviving executor. The personal representative holds the estate assets as a fiduciary, primarily to satisfy debts, liabilities, and the costs of administration before distributing what remains to the beneficiaries.

Once the personal representative is satisfied that a particular asset is no longer needed for that purpose, they can transfer it to the beneficiary. The instrument by which they do so is called an assent. Section 36(1) of the Administration of Estates Act 1925 provides that a personal representative may assent to the vesting in any person who (whether by devise, bequest, devolution, appropriation, or otherwise) may be entitled thereto, either beneficially or as trustee or personal representative, of any estate or interest in real estate to which the testator or intestate was entitled or over which he exercised a general power of appointment by his will.

The practical effect is that the assent transfers the legal estate from the personal representative to the beneficiary (or the trustee who will hold the asset for the beneficiary). From the moment the assent takes effect, the personal representative’s role in respect of that asset ends; the recipient takes subject to any trusts or conditions applicable under the will or the general law.

Assent vs Conveyance: A Crucial Distinction

The words “assent” and “conveyance” are sometimes used loosely in everyday speech, but they have precise and different meanings in English property law.

• A conveyance (or, in registered land, a transfer on form TR1) is a disposition for value. The transferee pays the transferor — or provides some other valuable consideration. Conveyances attract stamp duty land tax (SDLT) where the consideration exceeds the nil-rate threshold.
• An assent is a disposition made without consideration, as part of the administration of a deceased’s estate. The personal representative transfers the asset to the beneficiary as required by the will or intestacy rules, not as a commercial transaction. An assent by personal representatives to a beneficiary who takes by inheritance is exempt from SDLT under paragraph 3A of Schedule 3 to the Finance Act 2003.

This distinction has significant practical and tax consequences. Where a personal representative sells estate property to a third party — including, in some circumstances, to a beneficiary who “buys out” the other beneficiaries’ shares — the transaction is a conveyance (or transfer for value) and SDLT may be payable. An assent of the beneficiary’s own entitlement, by contrast, is not subject to SDLT.

Formal Requirements for an Assent

The formal requirements for an assent differ depending on the type of asset being transferred.

Registered land

For registered land, the assent must be made in writing and signed by the personal representative. In practice, HM Land Registry requires the assent to be made on:

• Form AS1 — assent of the whole of a registered title.
• Form AS3 — assent of part of a registered title (when the estate property includes only part of an existing registered title).

The completed form, together with the grant of probate or letters of administration and any required Land Registry fee, must be submitted to the Land Registry. The assent takes effect when registered; until registered the beneficiary acquires only an equitable interest, not the legal estate.

Unregistered land

For unregistered land, section 36(4) AEA 1925 requires the assent to be in writing, signed by the personal representative. It need not be a deed, but where the assent triggers compulsory first registration (as it will where the transaction falls within a triggering event under the Land Registration Act 2002), the beneficiary must apply to register the title within two months or the legal estate revests in the personal representative. The assent should be retained with the title deeds.

Personalty

For personal property — cash, shares, chattels, intellectual property — no statutory form of assent is required. Legal title passes by delivery (for chattels), by transfer of a share certificate and registration (for certificated shares), or by appropriate instruction (for cash). A written record of the transfer is good practice for accounting and tax purposes.

The Memorandum of Assent

Where an assent of unregistered land is made, the personal representative should endorse a memorandum of assent on, or attach it to, the original grant of probate or letters of administration. The memorandum records the date of the assent, the property assented, and the identity of the recipient.

The purpose of the memorandum is to protect third parties. Section 36(6) AEA 1925 provides that a person who purchases land from a personal representative and obtains a written assent or conveyance is not concerned to see or inquire whether the assent or conveyance was authorised — unless the grant of probate or letters of administration on which the conveyance is endorsed already contains a memorandum of a prior assent or conveyance of the same land. The memorandum therefore acts as a flag: if a memorandum appears on the grant, a purchaser knows that the personal representative has already dealt with that property and can no longer give a good title to it.

Where registered land is assented using AS1 or AS3 and the assent is registered at the Land Registry, no separate memorandum on the grant is needed — the register itself provides the public record of the transaction.

When the Personal Representative Assents to Themselves

It is common for a personal representative to wear more than one hat. An executor who is also appointed trustee under the will must at some point change roles: they cease to act as executor (once administration is complete) and begin to act as trustee (holding assets for contingent or ongoing beneficiaries). The mechanism for effecting this change is a self-assent — the personal representative assents the relevant property to themselves in their capacity as trustee.

Section 36 expressly permits this. The assent must still be in writing, and for registered land must be registered at the Land Registry. The register will reflect the change in capacity. Once the self-assent is made:

• The two-year limitation on personal representatives’ powers to sell without consent (where the trust instrument contains one) runs from the date of the assent.
• The trustee’s statutory and trust-instrument powers apply, not the personal representative’s powers under the AEA 1925.
• The trustee’s duties — including the duty of impartiality between income and capital beneficiaries — come into full force.

Consequences of Failing to Make an Assent

Where no assent is made, the legal estate in land remains vested in the personal representative — or, if they have died, in the President of the Family Division of the High Court (by virtue of section 9 of the Administration of Estates Act 1925 as amended by the Law of Property (Miscellaneous Provisions) Act 1994). This creates several practical problems:

• The beneficiary has only an equitable interest and cannot deal with the legal title independently.
• Conveyancing transactions affecting the property are complicated: the personal representative (or their estate) must join in to convey the legal title.
• If the original executor has themselves died, a chain of representation under section 7 AEA 1925 may allow the executor’s executor to act — but this chain breaks if there is any intestacy in the chain, requiring an application for a grant of administration de bonis non.
• The Land Registry may require additional evidence of entitlement before registering a subsequent transfer.

These difficulties can be avoided by making and registering assents promptly once the estate has been administered to the point where it is clear the asset is not required for debts. Delay in making assents is one of the most common causes of title defects that emerge on the subsequent sale of inherited property.

Frequently Asked Questions