Power of Sale and Beneficiaries

27 June 2024

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Every probate solicitor knows that a personal representative has a power of sale. This is contained in s. 50 of the Succession Act 1965. However, the right is not a unfettered right. Before selling, the personal representative must consult the beneficiaries of that property. If there are a range of beneficiaries the personal representative must take into account all of the views of the beneficiaries.

What happens if there is a dispute amongst the beneficiaries? Then in that case personal representative need only take into account the view of the majority. This provision is particularly useful in intestacy situations. In intestacy situations you can have a wide range of multiple beneficiaries with a diverse range of views. It would make it totally unfeasible to realise any value out of the property if one beneficiary could hold the others to ransom. In intestacy situations with a wide range of family beneficiaries, there tends to be family “camps” and so one branch of relations will take one view and another a differing view. Thus it is of great benefit for all parties that a personal representative can proceed based on a majority of wishes. So even if one of the “camps” hold out, a sale can still proceed.

In addition, of even greater benefit to a personal representative, is that, the majority is not majority in number but majority by value. In an intestacy situation with a wide variety of beneficiaries, majority in value will not be as relevant, but in a will situation where a property is left say 70% to one person with remaining 30% to 10 individuals, then the one majority owner in value of the property can “call the shots” so to speak.

Further, it should be noted that the wishes of those of “full age” are only to be considered. So if property is held by minors, then their number does not form part of the “pot” of persons from which consent must be sought.

A question sometimes arises as to what to do with the “non-communicative” beneficiary. Can you treat silence as consent or at least lack of objection? In those cases, one has to take a sensible approach. It is helpful that the section indicates that the personal representative shall “as far as practicable” give effect to the wishes of beneficiaries. So if a beneficiary has been written to on two or three occasions or other steps taken to obtain their consent or ascertain their wishes and all of this has failed in obtaining formal consent, then a personal representative would be entitled to proceed safe in the knowledge that they have taken enough steps to obtain consent.

It would be a brave personal representative to go against the wishes to the majority, but there is no particular sanction preventing the personal representative from taking that action. Further the section contains a useful saver for purchasers, in that a purchaser need not concern him or herself with whether or not the internal arrangements of an estate has been complied with. That purchaser gets good title despite any defects in the consent arrangements of the personal representative.

The remedy for beneficiaries who have to deal with a personal representative “on a solo run” are that the beneficiary can recover damages from the personal representative if they can prove that the property was sold at a loss.

Hopefully this helps and if you have any tax, probate, property or capacity issues that you need assistance on please reach out to me through the probatehub site or via colm@theprobatehub.ie