Legal status of estate assets prior to Grant of Probate/Confirmation

[Bazman76]

Hi there,

I have a situation where there is a sole beneficiary of a Will, under English law is that person the legal owner of those assets prior to Probate having been granted?

To give more colour, the Will in question is a Scottish one and so will be handled by a Scottish court so it is Confirmation that is being applied for (which is the Scottish equivalent to Probate) the beneficiary moved to England more than eight years ago am I correct in thinking that it will be English law that applies here?

Thanks Baz

[Pezza54]

Confirmation should be obtained from the Sheriff Court in Scotland if the deceased lived and died in Scotland. The property is also situated in Scotland
Assets lie with the estate (executor controlled) until the executor distributes them. If the will states a beneficiary shall become the new owner of the deceased's property, the executor can transfer it using a property conveyancer after Confirmation has been obtained.

[atticus]

No, under English law, which I understand the question to be, the beneficiary is not the legal owner until title has been transferred. Some assets can be simply handed over, others will require a formal assent or assignment by executors who have obtained a grant of Probate.

[Bazman76]

Hi there,

The assets in question are some stocks that the deceased had when he died as well as some cash that has built up in the estate after he died, just to clarify the beneficiary is not currently the legal owner of the stocks/cash and ownership can not be transferred to the beneficiary until after the grant of Probate has been obtained?

Thanks Baz

[Pezza54]

Probate or Confirmation?

[PallasAthena]

If we are talking about Probate under English law (sorry, I know nothing about Scottish law and procedures) then (lawyers will correct me if I have this wrong) from date of death the legal owner is technically "The Estate of A. B. Deceased" and the Executor is the person with legal responsibility and authority for dealing with the estate. The grant of Probate does not give the legal ownership, it is a confirmation from the courts that the person named in the grant is legally entitled to deal with the assets of the estate. (This is a general comment not legal advice.)

So although the holders of the deceased's assets could hand them over to the Executor without Probate normally they won't until the Executor has obtained Probate (unless the amounts involved are relatively small). This is to protect the banks/share registrars etc from later being sued by someone else who also claims to be an Executor.

Likewise the Land Registry will not accept instructions from the Executor to transfer title in property until the Executor produces the grant of Probate confirming they are the person entitled to give that instruction.

So in practice the Executor needs to wait until they have Probate and can then transfer legal ownership of the shares from the estate to the beneficiary.

[Bazman76]

Probate or Confirmation?

I understand from pallasathena's response that the shares/property are currently legally part of my late father's estate and have to be transferred to my mother who is the sole beneficiary before they become her assets and the only way to do that is to obtain the grant of Confirmation. Is it therefore correct to say that any rent yielded on that property also remains part of my father's estate and that will remain the case until the property itself has been transferred meaning that in effect the rent can not be transferred to my mother until the grant of Confirmation has been obtained? My mother is also an Executor for my late father and the rental income is being paid into an Executor account with her name on it. The reason that this is pertinent is that my mother is being assessed for care costs by an English local authority they want a list of all the bank accounts that have her name on trouble is there are also estate debts which more than offset the assets but there are no place on the forms for those, so it would be easiest if we could exclude those accounts on the basis that they are not yet her assets but obviously this has to be kosher.

[Pezza54]

Yes you are right. The assessment for care costs is at a particular point in time
The rental income should be deposited in an executor account. Money in this account belongs to the estate, not your mother

[Bazman76]

Yes you are right. The assessment for care costs is at a particular point in time
The rental income should be deposited in an executor account. Money in this account belongs to the estate, not your mother

Thank you for your prompt response!

This thread relates to English law can you confirm that the same would apply to Scottish law? It's a Scottish Will but an English local authority so both may be relevant.