Guidance

Practice guide 6: devolution on the death of a registered proprietor

Updated 29 April 2024

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Introduction

This guide sets out the evidence required for applications relating to the death of an owner of an estate in land.

Following the death of a registered proprietor, we advise that the register is updated as a fraud prevention measure.

Under section 4 of the 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.

1.1 Retention of documents submitted with applications

If your application is a first registration, original documents are normally required.

A conveyancer may, however, make an application for first registration on the basis of certified copy deeds and documents only. For information about this see practice guide 1: first registrations – Applications lodged by conveyancers – acceptance of certified copy deeds.

If your application is not a first registration, we only need certified copies of deeds or documents you send to us with HM Land Registry applications. Once we have made a scanned copy of the documents you send to us they will be destroyed. This applies to both originals and original certified copies.

Do not send any documents you wish to retain either original or original certified copies, ensure you send copies as once we have made a scanned copy of the documents you send to us they will be destroyed.

Any original copies of death certificates or grants of probate will continue to be returned.

2. Effect of death on an estate in land or charge or mortgage

2.1 Sole legal owner

Where a sole legal owner dies, the vesting of any legal estate, charge or mortgage they owned will depend on whether the deceased had a valid will.

Where the deceased has appointed an executor, the executor is considered to gain title on death of the owner. However, an executor must prove their entitlement to deal with the legal estate, charge or mortgage by obtaining probate before HM Land Registry will either register them as proprietor or accept a conveyance or transfer by them (Jennison v Jennison [2022] EWCA Civ 1682 at 18).

Where the owner dies intestate, the legal estate vests in the Public Trustee (section 9 of the Administration of Estates Act 1925).

Whilst a will or the rules of intestacy may give rise to an equitable interest, the legal estate does not vest in a beneficiary until a grant of representation is obtained and the land is conveyed to the beneficiary.

The distinction between an executor and an administrator as set out in Woolley v Clark (1822) B & Ald 744 at 745-746 must be considered. HM Land Registry will not accept a disposition by an administrator that pre-dates the letters of administration.

2.2 Death of a joint owner

Where a legal estate is held by joint owners, on the death of one owner the legal estate vests in the survivor(s). In respect of the legal estate, it does not matter whether the owners were holding as beneficial joint tenants or tenants in common; a legal estate is indivisible (ss.1(6) and 36(2), Law of Property Act 1925). The executor or administrator of the deceased owner cannot convey a share in the legal estate. HM Land Registry will not require an administrator or executor of a deceased co-owner to join in a disposition.

Where the last survivor of joint proprietors dies the legal estate must be dealt with by their personal representatives as for a sole owner.

2.3 Grants of probate or letters of administration

To deal with property in England and Wales the grant of probate or letters of administration must be granted by a court in either England, Wales, Scotland, or Northern Ireland.

An appointment of personal representatives obtained outside the UK is not acceptable evidence unless it has been resealed by a court of probate in the UK (Jennison v Jennison [2022] EWCA Civ 1682 at 20).

Only certain foreign grants can be resealed under the Colonial Probates Act 1892 and Colonial Probates (Protected States and Mandated Territories) Act 1927. Once a foreign grant of probate is re-issued it becomes effective to administer any estate in England and Wales. Re-sealing does not have retrospective effect, so any disposition must post-date the date of resealing.

If the foreign grant cannot be resealed, a full grant of representation granted in the UK will be required. Please note that grants of probate obtained in Crown Dependencies (Bailiwick of Jersey, the Bailiwick of Guernsey and the Isle of Man) cannot be resealed and are not acceptable as evidence to deal with property in England and Wales.

Where the sole or last surviving executor dies, their executor becomes the executor of the original testator.

This is known as the chain of representation and can continue indefinitely as long as each executor appoints their own executor who obtains probate.

The chain of representation is broken by either:

• an intestacy

• the failure of a testator to appoint an executor

• the failure to obtain probate of a will

In the case of a grant to an executor’s attorney, although a will was made, letters of administration are granted and therefore the chain is broken, unless the executor later obtains probate.

The survivor of joint administrators can deal with the deceased’s estate. However, when the last remaining administrator dies there can be no chain and letters de bonis non administratis will be required. Please note that as this is a type of letters of administration it does not apply retrospectively.

All the probates in the chain must be granted in England or Wales. A Scottish confirmation or probate granted in Northern Ireland whilst acceptable to deal with land in England and Wales cannot form part of a chain of representation (section 1(3) of the Administration of Estates Act 1971).

References to grant of probate or letters of administration in the remainder of this guide are only to those granted in the UK or resealed by a court in England or Wales.

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

3.1 Noting the death

Once evidence of death has been produced, the registrar will make an entry in the register reflecting the notification of the death. The application should be made on form AP1 and no fee is payable.

Where a Certificate of Presumed Death has been issued under the Presumption of Death Act 2013, we will similarly make an entry in the register reflecting the notification of the presumed death. Please note that the High Court declaration alone is not sufficient evidence.

3.2 Registration of the personal representative(s)

The personal representative(s) of a sole registered proprietor of a registered estate or of a charge or mortgage may apply to be registered as proprietor(s) of the estate, charge or mortgage in their capacity as personal representative(s) in place of the deceased proprietor. To apply for registration in this way you will need to send us:

• application form AP1. Please describe application as ‘Transfer by operation of law’
• a certified or office copy of the grant of probate or letters of administration, or a court order appointing the applicant(s) as the deceased’s personal representative(s) or (where a conveyancer is acting for the applicant(s)) a certificate given by a conveyancer that they hold the original or an office copy of the probate, letters of administration or court order. The certificate must include confirmation of the granting of the grant of probate, letters of administration or court order in the United Kingdom. The certificate must also confirm that the grant of probate, letters of administration or court order is not limited. If the conveyancer is unable to confirm that the grant is not limited, a certified copy of the grant of probate or letters of administration or court order will be required and if not provided with the application, a requisition will be raised to request this.
• the fee payable under the current Land Registration Fee Order, see HM Land Registry: Registration Services fees

To find out what happens to documents submitted with application forms, see Retention of documents submitted with applications.

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

Where a limited grant of representation has been issued, and the grantee is registered as proprietor, we may add a note to the proprietor entry to reflect the limitations of the grant and that any power to dispose of the registered estate or charge may come to an end.

Where the person absolutely entitled is a minor, we will enter a restriction only if one is applied for in form RX1.

Where a grant is issued to a person during widowhood, or where the will is lost, destroyed or damaged, a restriction will not be required as the form of the proprietor entry will make the position clear.

Where the grant is to the attorney of an executor or person entitled to a grant of letters of administration, a restriction will be entered by the registrar of his own volition (in the absence of an application for one) that will require a statutory declaration or statement of truth by the grantee to be lodged to support a subsequent disposition of the registered estate or charge.

3.3 Registration of a disposition by the personal representative(s)

The personal representative(s) 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 apply to register such a disposition you will need to send us:

• form AP1 (form FR1 if the transfer or assent triggers first registration)
• either
  • transfer form TR1 (if you are selling the whole of the registered estate)
  • transfer form TP1 (if you are only selling part of the registered estate)
  • assent form AS1 (if the whole of the registered estate is the subject of the assent)
  • assent form 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
• a certified or office copy of the grant of probate or letters of administration, or a court order appointing the transferor as the deceased’s personal representative(s) or (where a conveyancer is acting for the applicant) a certificate given by a conveyancer that they hold the original or a certified or office copy of the probate, letters of administration or court order. The certificate can be added, where appropriate, in panel 11 of form TR1, form AS1 and form AS2, in panel 9 of form TR4 and in panel 12 of form TP1 and form AS3. The certificate must include confirmation of the granting of the grant of probate, letters of administration or court order in the United Kingdom. We will not need this evidence if the personal representatives are already registered as proprietors in that capacity
• evidence of identity for the personal representative(s) if they are not represented by a conveyancer or a conveyancer has not certified they are satisfied that sufficient steps have been taken to verify their identity (for further details, see practice guide 67: evidence of identity)
• the fee payable under the current Land Registration Fee Order, see HM Land Registry: Registration Services fees

Note 1: To find out what happens to documents submitted with application forms, see Retention of documents submitted with applications.

Note 2: 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 form 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:

• the Property is vested in the Recipient upon the trusts declared in the will of (name of deceased) proved on (date);
• the trustees of the settlement are (names of trustees);
• the power of appointment of new trustees is vested in (name);
• 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.

3.3.1 Attorney of personal representative(s)

After a grant of representation has been issued, a personal representative may delegate their function as executor or administrator to an attorney but this must be done by a power made under section 25 of the Trustee Act 1925, (as amended by section 5 of the Trustee Delegation Act 1999) which can last only 12 months and so has to be renewed if the delegation is to be for a longer period.

3.3.2 Attorney of an executor or person entitled to the grant of letters of administration

Where the disposition is by the attorney of an executor or person entitled to a grant of letters of administration, we will require a statutory declaration or statement of truth from the attorney confirming that, as at the date of the disposition, they had not received notice of the death of the executor or person entitled to the grant of letters of administration, or of an application by that person for a grant of representation.

A transfer or assent by an attorney requires the notional registration of the attorney as proprietor of the registered estate (or charge), which would, if such registration had taken place separately, have resulted in the entry of a restriction to make sure any power to dispose of the registered estate (or charge) has not come to an end.

3.3.3 Limited grant of representation

A limited grant of representation may be issued in a number of situations. This includes when the individual named as executor is a minor or when the original will has been lost or destroyed. In other circumstances, a grantee may only be entitled to act until further representation is sought, or during their widowhood.

In these situations, we will require a certificate from the conveyancer acting for the personal representative confirming that further representation has not been sought or granted, and that (if applicable) the person for whose use and benefit the grant was obtained is still alive.

The conveyancer should also certify that the specific limitation recorded in the grant remained applicable at the date of the disposition - for example, that a minor for whose use and benefit the grant was obtained had not attained the age of 18.

Where the original will has been lost or destroyed and the personal representative was registered on the basis of a limited grant, we will require a certificate from the conveyancer acting for the personal representative that as at the date of the disposition neither the original will nor a more complete or authentic copy of it had subsequently been proved.

A grant ad colligenda bona is sufficient to enable registration of the grantee(s) as proprietor(s) in place of the deceased. When we register such grantees, we will:

• make an entry in the proprietorship register in the following wording:

“The proprietors are registered as grantees of letters of administration ad colligenda bona dated [DATE] of [NAME OF DECEASED PROPRIETOR] limited for the purpose only of [LIMITATION FROM THE GRANT] and until further representation be granted.”

• enter a restriction in the register in the following wording if the grant does not expressly authorise disposal of the property:

“No disposition by the proprietors of the registered estate is to be completed by registration unless their conveyancer gives a certificate that the disposition is necessary to preserve the estate of [NAME OF DECEASED PROPRIETOR], that at the time of the disposition no further representation had been sought or granted in the matter and that at that time the grantees named in the letters of administration ad colligenda bona referred to above were not deceased or dissolved.”

• enter a restriction in the register in the following wording if the grant expressly authorises disposal of the property:

“No disposition by the proprietors of the registered estate is to be completed by registration unless their conveyancer gives a certificate that at the time of the disposition no further representation had been sought or granted for the estate of [NAME OF DECEASED PROPRIETOR] and that at that time the grantees named in the letters of administration ad colligenda bona referred to above were not deceased or dissolved.”

Any disposition by the grantee(s) under a grant ad colligenda bona must be accompanied by the appropriate certificate.

3.4 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:

• 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)
• evidence of identity for the personal representative(s) if they are not represented by a conveyancer or a conveyancer has not certified they are satisfied that sufficient steps have been taken to verify their identity (for further details, see practice guide 67: evidence of identity)
• a certified or office copy of the grant of probate or letters of administration, or (where a conveyancer is acting for the charge) a certificate given by the conveyancer that they hold the original or an official copy of such grant of probate or letters of administration. The certificate must include confirmation of the granting of the grant of probate, letters of administration or court order in the United Kingdom

There is no fee.

To find out what happens to documents submitted with application forms, see Retention of documents submitted with applications.

3.5 Vesting and/or transfer of property as bona vacantia on intestacy

Where the residuary estate of an intestate person has vested as bona vacantia in the Treasury Solicitor (as nominee of the Crown) or one of the Royal Duchies, we will require a certified or official copy of the grant of letters of administration for the deceased with any related application sent to us.

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:

• form DJP
• evidence of death, either:
  • death certificate, or presumption of death certificate or written confirmation by a conveyancer of the fact of the death, which should include the full name of the deceased, the date of death and either the date of birth or the age at death of the deceased
  • grant of probate or letters of administration, or a conveyancer can complete the certificate in option C in panel 4 of form DJP to certify that they hold the original or an official copy of such grant of probate or letters of administration

There is no fee.

To find out what happens to documents submitted with application forms, see Retention of documents submitted with applications.

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 inheritance tax (formerly capital transfer tax)

Capital transfer tax was introduced by the Finance Act 1975. On 25 July 1986, being the operative date of the Finance Act 1986, the tax was re-named inheritance 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 rules 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 8 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.

Where it appears from the application that the net value of the deceased’s estate exceeded the relevant tax threshold at the date of death, and we need to send requisitions on other points, 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 «NAME» who died on «DATE».”

If no other requisitions arise, we will make this entry in the register and include a letter on completion of the application, confirming that the entry has been made.

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 HM Revenue & Customs, or a letter from them addressed to the registrar confirming this.

Providing a copy of the grant of probate itself is not accepted by HM Land Registry as sufficient evidence that inheritance tax has been paid. This is because it is possible to pay inheritance tax in yearly instalments in certain circumstances.

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. For more information on trusts of land and standard Form A restrictions, see practice guide 24: private trusts of land.

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 (section 1(1) of the Administration of Estates Act 1925). Provided there are at least 2 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 Removal of a restriction in Form A from the register. The same applies when, as a result of a change in the trusts, the continuing registered proprietors have become entitled as beneficial joint tenants.

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, or if there is still more than one registered proprietor, how they have become joint tenants instead of tenants in common.

The evidence we usually accept is a statutory declaration or statement of truth in form ST5 (see practice guide 73: statements of truth) by the sole surviving proprietor(s) which shows how they have become the beneficial owner by:

• explaining the nature of the beneficial interest protected by the restriction and what happened to that interest
• if it has passed to the surviving proprietor(s), explaining how this happened
• (where there remains one registered proprietor) confirming, if it is true, that no one other than the remaining/surviving registered proprietor now has a beneficial interest in the property
• (where there remains 2 or more registered proprietors) confirming, if it is true, that they hold the property on trust for themselves (and no one else) as beneficial joint tenants
• confirming, if it is true, that no beneficial interest in the property has been separately mortgaged or charged, and that no beneficial owner is or was subject to a charging order or bankruptcy proceedings (a registered mortgage does not count)

Form ST5 can also be used to apply for cancellation of a Form A restriction in the register when, as a result of a change in the trusts, the continuing registered proprietors have become entitled as beneficial joint tenants.

Instead of a statutory declaration or statement of truth, we will accept a certificate to the same effect from the conveyancer acting for the surviving proprietor(s) 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.

There is no fee.

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

See HM Land Registry: Registration Services fees for fees payable. Unless you have a prior authorised agreement with HM Land Registry to pay by direct debit, enclose a cheque for that amount, payable to ‘HM Land Registry’, with the application.

9.2 Where to send your application

To find out where to send your completed application, see HM Land Registry address for applications.

9.3 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 HM Land Registry. Under rule 198 of the 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 2 further addresses in the register, which can include an email, a UK DX or a postal (either UK or overseas) address.

10. Things to remember

Before sending your application to us, make sure you have:

• 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
• provided evidence of identity for the personal representative(s) if required (for further details, see practice guide 67: evidence of identity)
• checked 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.

We only provide factual information and impartial advice about our procedures. Read more about the advice we give.