This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
Summary of the Present Law
The Legal Estate. - The legal estate in all property (except copyhold lands and some other similar forms of property) now vests in the personal representatives of the deceased owner. But this rule only applies if he died on or after the 1st of January, 1898.
Death before the 1st of January, 1898.
(a) Real estate.- - If the tenant in fee simple died intestate, the legal estate passed to his heir; if he made a will, the legal estate passed direct to the person to whom the testator devised it.
Meal estate did not pass to the executor or administrator, unless it was devised to him by the testator.
Consequently the executor or administrator had no power to deal with land or to sell it, unless power was given to him to do so, either directly, or indirectly (a). For the same reason, a will dealing with real estate only could not be proved in the= Probate Court.
(b) Personal property, including leaseholds and other chattels real, vested in the personal representative. If the owner died intestate, it did not pass direct to the next of kin, but vested in the administrator.
(a) As when debts were charged upon the land. See 22 & 23 Vict. c. 35, s. 14.
The administrator is the person appointed by the Court to administer the estate if there is no executor. "The court," before 1875, was the Court of Probate; since 1875 is the Probate Division of the High Court.
If the owner made a will and appointed an executor, the personal property vested in the executor; it did not go direct to the legatee.
The executor had full power to deal with the personal property, including leaseholds, and to sell it for the purpose of paying the debts of the testator.
II. Death on or after the 1st of January, 1898.
The Land Transfer Act, 1897 (b) creates a real representative, or rather confers on the personal representative the rights and duties of a real representative. In case of a person dying on or after the 1st of January, 1898, his real estate must vest in his executor or administrator.
Section 1. - "Where real estate is vested in any person without a right in any other person to take by survivorship, it shall, on his death, not-withstanding any testamentary disposition, devolve to and be vested in his personal representatives . . . as if it were a chattel real vesting in them."
Notes on this Section.
"Right to take, by Survivorship."
If land is vested in A and B as joint tenants in fee simple, then, on the death of A, his land goes to B by survivorship. There is nothing left in A and nothing vests in his personal representatives.
"Notwithstanding any Testamentary Disposition." The testator cannot make the legal estate vest direct in the devisee, or in any other person except the executor or administrator.
(b) 60 & 61 Vict. c. 65, s. 1.
"As if it were a Chattel Real."
Thus the executor or administrator has now all the powers over real estate which he formerly had over a leasehold, and he can sell or mortgage it for the payment of the debts of the deceased and for the administration of his estate.
The Act applies to land over which the testator had a general power of appointment which is exercised by his will (c) (see p. 162).
The Act does not apply to copyholds or customary estates where surrender to the lord or admission is necessary for a transfer of the legal estate (d).
The executor or administrator holds the legal estate in trust for the person entitled to it, either under the will or on intestacy.
Thus the Act does not alter the rules of descent or the rules for the construction of wills; and the beneficial interest still passes to the same persons as before the Act, but the legal estate does not pass to the heir or devisee until the personal representative transfers it to him.
As soon as the estate is fully administered, that is to say, when all the funeral expenses, death duties (e), debts, and legacies payable out of the land have been paid, the personal representative must transfer the legal estate to the persons entitled as follows: -
1. If the tenant in fee simple died intestate, the administrator must convey the legal estate to the heir (f).
2. If the land is devised by the will to a devisee, the executor (or administrator) can transfer the legal estate to the devisee by merely assenting to the devise (f).
(c) S. l (2).
(d) S. 1 (4).
(e) As to the death duties which are now payable, see Chapter XXXV (Death Duties). (f) S. 3.
This assent need not necessarily be in writing, and it may be presumed to have been given if the devisee takes possession and holds the land for a considerable time. But it is better that the assent should be in writing.
Probate may now be granted of a will dealing with real estate only (g).
(g) S. 1 (3).