Registering the personal representative is not the end of an estate’s land administration. It is the first of two steps, and the second is where most estates get stuck.
Step one — transmission to the personal representative
Under Part XII Division 2 of the Land Registration Act, the personal representative lodges with the Registrar:
- a written application to be registered as proprietor; and
- an office copy of the probate, letters of administration or order to administer.
The Registrar shall register it, and the personal representative becomes the registered proprietor — in that capacity. Under section 104(2), the Registrar may describe a proprietor as executor or administrator, so the capacity appears on the folio even though the terms of the will do not.
Section 128(1) of the Land Act 1996 excludes a transmission from the definition of a controlled dealing, and defines transmission as acquisition of title consequent on death or insolvency. So step one proceeds without approval.
Step two — transfer to the beneficiaries
The personal representative holds to administer the estate, not to keep. Getting the land to the beneficiaries requires an ordinary transfer under Part V:
- executed in the approved form;
- stating the consideration — and where it is not money, stating concisely the nature of the consideration under section 42(3). A distribution under a will is described as what it is;
- lodged as a single original document, with the duplicate certificate of title.
A transfer of a State lease with more than five years remaining is a controlled dealing — void without the Minister’s approval, and approval must be withheld unless rent is paid to date and the improvement conditions have been performed, or special grounds of an urgent or exceptional character are shown.
And section 35(4) independently bars the Registrar from registering the transfer unless satisfied of the same matters. The estate must therefore bring the lease into compliance before it can distribute the land.
Keeping the lease alive in the meantime
Probate and administration take time, and a State lease does not pause.
- Pay the rent. Six months’ arrears is a ground of forfeiture under section 122(1)(a) of the Land Act.
- Address the improvement conditions, or apply under section 118(2) for relaxation on the ground of special hardship, and under section 83(5) for remission or postponement of rent. Both are exercised on application.
- Watch for notices. Section 122(4) requires a forfeiture or show-cause notice to be served on everyone known to have or claim an interest — which is a reason to complete the transmission promptly, so the estate is visible on the folio.
- Check whether the land has been reserved from further lease, and when the term expires. If expiry is near, remember that section 119 pays for improvements only where the lessee applied for a further lease and was refused.
Mortgages and other encumbrances
Everything notified on the folio continues to bind under section 33(1)(b). A registered mortgage survives the death of the mortgagor, and the lender’s remedies remain available on default. An estate that stops servicing a mortgage can lose the asset before the beneficiaries see it.
If the debt is paid from estate funds, obtain the discharge instrument and have it registered under section 77 — payment alone does not clear the folio.
Where beneficiaries are in dispute
A beneficiary who fears the land will be dealt with improperly can lodge a caveat under section 82(a) claiming an interest. Remember that it does not bite until accepted, and it lapses after three months unless lodged with the registered proprietor’s written consent, or proceedings are commenced and the Registrar is notified in writing.
Under section 142, no indemnity is available out of the Assurance Fund for loss occasioned by breach of trust or default. A beneficiary whose personal representative deals wrongly with estate land sues the representative — the Fund does not stand behind that loss.
Customary land does not pass this way
Registered land passes under the will or on intestacy, administered under the Wills, Probate and Administration Act (Chapter 291), and recorded by transmission and then transfer.
Customary land generally does not pass by will at all. It devolves according to the custom of the place, and disputes go to the Land Courts and the Land Titles Commission, not the probate jurisdiction. See Re Sannga, Deceased [1983] PGSC 20; [1983] PNGLR 142.
An estate can easily contain both, and the two halves are administered under different law.
Checklist for a personal representative
- Obtain the grant — probate, letters of administration, or an order to administer.
- Search the title and identify every registered interest.
- Lodge the transmission application with an office copy of the grant.
- Bring the lease into compliance — rent, conditions — and apply for relief where needed.
- Obtain Ministerial approval for the transfer to the beneficiaries.
- Execute and lodge the transfer in the approved form, with the duplicate title, within the 28-day Land Act period.
- Deal with customary land separately, through the Land Courts if there is a dispute.
- Take advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Land Registration Act (Chapter 191) — ss 33, 42, 77, 82, 104, 117–120, 142; Parts V, XI and XII
- Land Act 1996 — ss 83, 118, 119, 122, 127–129
- Wills, Probate and Administration Act (Chapter 291)
- Re Sannga, Deceased [1983] PGSC 20; [1983] PNGLR 142
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.