Property passing outside of the estate Flashcards
Which interests in land do not fall within the estate?
Life tenancies in land and interests under an equitable joint tenancy
What happens if the deceased was a bare trustee of a trust of land?
As the deceased only possessed the legal title and the whole of the beneficial title was owned by someone else none of it ca pass into the death estate as the deceased did not own any equity. The legal title will be temporarily held by the PRs but normally a new bare trustee is appointed or the trust wound up - it is not possible to inherit the trusteeship
How will personalty pass?
Automatically to the PRs
What of the deceased’s property does not fall within the estate?
- property held in trust
- proceeds of life insurance policies
- pension scheme lump sum payments
- gifts donatio mortis causa
If the deceased has a life interest in a particular property what happens to it?
The life interest will cease automatically on the deceased’s death and will pass onto the next person in line - it never falls within the estate
What happens if the deceased had property owned as a beneficial joint tenant?
All the deceased’s interest passes automatically to the other beneficial joint tenant because of the principle of survivorship and never becomes part of the death estate
What happens if the deceased has property owned as tenancy in common?
It is possible to leave the deceased’s beneficial share of the tenancy in common in the will or for it to pass under intestacy
What happens to life insurance policies?
If the deceased did not make any arrangements for the policy the lump sum will be paid into the death estate but if the deceased wrote the policy into trust it would pass straight to the beneficiary and can have significant inheritance tax advantages
What happens if the deceased has a pension?
The deceased can nominate a person to receive their lump sum or death in service payment and if so it will be paid directly to them
What is donatio mortis causa?
A gift made in expectation of death
What happens to a gift made in expectation of death?
It passes to the beneficiary automatically on death and never forms part of the estate so cannot pass to anyone else under the will
What factors must be present in a gift made in expectation of death?
- ‘contemplation’ of death
- an intention that the gift will only take effect if the donor dies
- delivery of the gift
What is required for the factor ‘contemplation’ of death?
There is a realistic prospect that the person may die within a very short space of time and the person must be aware of this
What type of delivery will operate in donatio mortis causa?
Actual or constructive delivery. Symbolic delivery does not
Is it possible to make a gift of land in expectation of death?
It is possible for unregistered land by giving the donee the title deeds of the land but it is not possible to make a gift of registered land
