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The question in full
During the administration period of a will, do heirs (=beneficiaries), especially "residuary legatees", have any sort of ownership (legal or beneficial) of any of the estate's assets?
Or does absolute ownership (legal and beneficial) reside with the executor/administrator?
The info below seems convincing, but I'm not a lawyer and I'm getting mixed views on this, some that say heirs do have beneficial ownership (only, not legal) during administration.
I'm hoping someone can confirm this is valid in English law, as it has tax implications.
My understanding
And there's nothing one can put in a will to circumvent this process. A will must be administered, even if only for a very short time.
The evidence
1) Privy Council ruling: Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694
As explained here:
Rights of beneficiaries during administration: https://library.croneri.co.uk/cch_uk/fpr/1-14 (intermittent paywall, free at posting)
2) Privy Council ruling: Marshall v Kerr (1995) 1 AC 148
As explained here:
The administration period: https://library.croneri.co.uk/cch_uk/fpr/9-6 (intermittent paywall, free at posting)
3) There's even a whole chapter devoted to the first ruling in the book: Landmark Cases in Succession Law by Brian Sloan (snippets sourced from Google Books).
The underlying principle of the ruling seems to rest on the fact that, until administration is complete, in principle no one knows for sure if there will be anything left, so the administrator needs absolute discretion.
And all wills should be treated equally for consistency and simplicity, regardless of complexity.
Thank you for clearing this up.
During the administration period of a will, do heirs (=beneficiaries), especially "residuary legatees", have any sort of ownership (legal or beneficial) of any of the estate's assets?
Or does absolute ownership (legal and beneficial) reside with the executor/administrator?
The info below seems convincing, but I'm not a lawyer and I'm getting mixed views on this, some that say heirs do have beneficial ownership (only, not legal) during administration.
I'm hoping someone can confirm this is valid in English law, as it has tax implications.
My understanding
In English law, the property of someone who dies having left a will automatically vests [absolutely] in the deceased’s executors until they complete the administration of the estate and[/or] transfer the assets to those entitled under the deceased’s will (if there's anything left).
The evidence
1) Privy Council ruling: Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694
‘. . . until administration was complete no one was in a position to say what items of property would need to be realised for the purposes of that administration or of what the residue, when ascertained, would consist or what its value would be …’
Rights of beneficiaries during administration: https://library.croneri.co.uk/cch_uk/fpr/1-14 (intermittent paywall, free at posting)
2) Privy Council ruling: Marshall v Kerr (1995) 1 AC 148
Lord Templeman in Marshall v Kerr (which confirmed Commissioner of Stamp Duties (Queensland) v Livingston) stated:
‘The entire ownership of the property comprised in the estate of a deceased person which remains unadministered is in the deceased’s legal personal representatives for the purposes of administration without any differentiation between legal and equitable interests.
No legatee or person entitled upon the intestacy of the deceased has any proprietary interest in any particular asset comprised in the unadministered estate of the deceased.
Each such legatee or person so entitled is entitled to a chose in action, viz. a right to require the deceased’s estate to be duly administered … .’
‘The entire ownership of the property comprised in the estate of a deceased person which remains unadministered is in the deceased’s legal personal representatives for the purposes of administration without any differentiation between legal and equitable interests.
No legatee or person entitled upon the intestacy of the deceased has any proprietary interest in any particular asset comprised in the unadministered estate of the deceased.
Each such legatee or person so entitled is entitled to a chose in action, viz. a right to require the deceased’s estate to be duly administered … .’
The administration period: https://library.croneri.co.uk/cch_uk/fpr/9-6 (intermittent paywall, free at posting)
3) There's even a whole chapter devoted to the first ruling in the book: Landmark Cases in Succession Law by Brian Sloan (snippets sourced from Google Books).
The underlying principle of the ruling seems to rest on the fact that, until administration is complete, in principle no one knows for sure if there will be anything left, so the administrator needs absolute discretion.
And all wills should be treated equally for consistency and simplicity, regardless of complexity.
Thank you for clearing this up.
