Closest equivalent rights and adaptation

1. What are the main rights in rem arising from successions in your system?

The rights in rem where the deceased left a will are normally those arising under the will. The rights in rem arising on intestacy are set out in the Administration of Estates Act 1925, section 46 as amended from time to time – set out below. Both the rights under the will and under the rules of intestacy are subject to the overriding power of the court in relation to family provision (Inheritance (Provision for Family and Dependants) Act 1975, s.1provides that various dependents and relatives of the deceased may apply to the court if the will or intestacy rules do not make reasonable financial provision for them)

Administration of Estates Act 1925, section 46.— Succession to real and personal estate on intestacy.

(1) The residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in this section, namely:—

(i) If the intestate leaves a spouse or civil partner, then in accordance with the following:

If the intestate:

1) leaves

a) no issue, and
b) no parent, or brother or sister of the whole blood, or issue of a brother or sister of the whole blood.

The residuary estate shall be held in trust for the surviving spouse or civil partner absolutely.

2) leaves issue (whether or not persons mentioned in sub-paragraph (b) above also survive) :

The surviving spouse or civil partner shall take the personal chattels absolutely and, in addition, the residuary estate of the intestate (other than the personal chattels) shall stand charged with the payment of a fixed net sum, free of death duties and costs, to the surviving spouse or civil partner with interest thereon from the date of the death at such rate as the Lord Chancellor may specify by order until paid or appropriated, and, subject to providing for that sum and the interest thereon, the residuary estate (other than the personal chattels) shall be held.

a) as to one half upon trust for the surviving spouse or civil partner during his or her life, and, subject to such life interest, on the statutory trusts for the issue of the intestate, and
b) as to the other half, on the statutory trusts for the issue of the intestate.

3) leaves one or more of the following, that is to say, a parent, a brother or sister of the whole blood, or issue of a brother or sister of the whole blood, but leaves no issue:

The surviving spouse or civil partner shall take the personal chattels absolutely and, in addition, the residuary estate of the intestate (other than the personal chattels) shall stand charged with the payment of a fixed net sum, free of death duties and costs, to the surviving spouse or civil partner with interest thereon from the date of the death at such rate as the Lord Chancellor may specify by order until paid or appropriated, and, subject to providing for that sum and the interest thereon, the residuary estate (other than the personal chattels) shall be held.

a) as to one half in trust for the surviving spouse or civil partner absolutely, and
b) as to the other half.
(i) where the intestate leaves one parent or both parents (whether or not brothers or sisters of the intestate or their issue also survive) in trust for the parent absolutely or, as the case may be, for the two parents in equal shares absolutely,
(ii) where the intestate leaves no parent, on the statutory trusts for the brothers and sisters of the whole blood of the intestate.

The fixed net sums referred to in paragraphs (2) and (3) of this Table shall be of the amounts provided by or under section 1 of the Family Provision Act 1966

(ii) If the intestate leaves issue but no spouse or civil partner , the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate;

(iii) If the intestate leaves no spouse or civil partner and  no issue but both parents, then, the residuary estate of the intestate shall be held in trust for the father and mother in equal shares absolutely;

(iv) If the intestate leaves no spouse or civil partner and  no issue but one parent, then, the residuary estate of the intestate shall be held in trust for the surviving father or mother absolutely;

(v) If the intestate leaves no spouse or civil partner and no issue and no parent, then  the residuary estate of the intestate shall be held in trust for the following persons living at the death of the intestate, and in the following order and manner, namely:—

• First, on the statutory trusts for the brothers and sisters of the whole blood of the intestate; but if no person takes an absolutely vested interest under such trusts, then
• Secondly, on the statutory trusts for the brothers and sisters of the half blood of the intestate; but if no person takes an absolutely vested interest under such trusts; then
• Thirdly, for the grandparents of the intestate and, if more than one survive the intestate, in equal shares; but if there is no member of this class; then
• Fourthly, on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate); but if no person takes an absolutely vested interest under such trusts; then
• Fifthly, on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate);

(vi) In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall belong to the Crown or to the Duchy of Lancaster or to the Duke of Cornwall for the time being, as the case may be, as bona vacantia, and in lieu of any right to escheat.

The Crown or the said Duchy or the said Duke may (without prejudice to the powers reserved by section nine of the Civil List Act, 1910, or any other powers), out of the whole or any part of the property devolving on them respectively, provide, in accordance with the existing practice, for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.

(1A) The power to make orders under subsection (1) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; and any such order may be varied or revoked by a subsequent order made under the power.

(2) A husband and wife shall for all purposes of distribution or division under the foregoing provisions of this section be treated as two persons.

(2A) Where the intestate’s spouse or civil partner survived the intestate but died before the end of the period of 28 days beginning with the day on which the intestate died, this section shall have effect as respects the intestate as if the spouse or civil partner had not survived the intestate.

(3) Where the intestate and the intestate’s spouse or civil partner have died in circumstances rendering in uncertain which of them survived the other and the intestate’s spouse or civil partner is by virtue of section one hundred and eighty-four of the Law of Property Act, 1925 , deemed to have survived the intestate, this section shall, nevertheless, have effect as respects the intestate as if the spouse or civil partner had not survived the intestate.

(4) The interest payable on [the fixed net sum payable to a surviving spouse or civil partner shall be primarily payable out of income.

Except where an interest in land passes automatically to a surviving joint tenant, as explained below, the deceased’s property vests in his or her “personal representative”. The personal representative is either –

• an executor appointed by the deceased’s will, or
• an administrator appointed by the court.

In the case of an executor, the real property vests in them from the date of death. But the executor will need a grant of probate from the Court of Probate to deal with the land. In the case of a deceased who did not make a will letters of administration must be obtained from the court. The property does not vest in the administrator until the letters of administration are obtained. These documents prove the personal representative’s entitlement to deal with land and property of the deceased. Until then, the deceased’s real estate is effectively frozen.

The personal representative is responsible for collecting the deceased’s assets, paying debts, funeral expenses and inheritance tax, and then distributing what is left to the heirs named in the will or entitled under the rules relating to intestate succession. S/he has full power to sell any asset of the estate in the process.

There may be any number of executors under the will, but a maximum of four will be granted probate in relation to the real property of the deceased. There will normally be only one administrator appointed, but in either case, if there is a trust arising under the will or intestacy there will normally be at least two executors or administrators. If there is more than one, they must act jointly.

If the property is jointly owned the real estate may not pass to the personal representative under the will. Where there are more than one registered proprietors they can hold real estate either as joint tenants or as tenants in common. If they hold as joint tenants, this means that on the death of one, his or her interest in the legal and beneficial estate passes automatically to the surviving joint tenant or tenants. It does not pass to the deceased’s personal representative, and it is not affected by anything in any will that the deceased has made.

If the joint owners held the property as tenants in common each of them has a specified share in the equity of the property. The equitable interest of a tenant in common passes, on his or her death, to the personal representative who must distribute it in accordance with any will the deceased made, or, if there is no will, in accordance with the rules of intestacy.

2. What would the role of your Land Register or registrars be in order to put in practice the principle of adaptation? What contributions could the Land Register make?

If the UK were to opt in to the regulation, the Land Registrar would play an important role in adapting rights in rem from another member state to the closest equivalent. Unless the applicant had already been to court and the court had made an order regarding the registration, it would be the Land Registry that decided how to register the right, and how it could be adapted to the law of England and Wales. Until the UK opts in, the representative of the deceased will have to obtain a grant of probate of letters of administration from the Court of Probate, and administer the real property according to the law of England and Wales.

• Imagine you receive a request for the registration of a foreign European Certificate of Succession. It follows from this Certificate that one of the heirs is entitled to a right that is not part of your national numerus clausus. How do you approach this problem?
  The UK has opted out of the European Succession Regulation.