General

In certain situations, the registered owner of a property may not have any beneficial interest in the property. For example, the registered owner may be the trustee of the property or a personal representative of the estate of a deceased person who was the owner of the property.

Letters of administration/grant of probate

Letters of administration is an official court document authorising the administrator named therein to deal with the property of the deceased owner. Grant of probate is an official court document confirming the power of the executor appointed under the will of the deceased owner to deal with the property of the deceased in accordance with the will. All personal representatives may concur to dispose of any of the deceased owner's property vested in the personal representatives, subject to any restriction that may be imposed by the will of the deceased.

Declaration of trust

This document is a declaration by the registered owner of a property that the rights, interest, benefit and entitlement of and in the property belong to another person, the beneficiary. This is particularly useful when the beneficiary is a minor at the time of acquisition of the property.

In respect of certain land in the New Territories to which the New Territories Ordinance applies, Section 18 of the New Territories Ordinance provides that where such land is vested in a minor, the Secretary for Home Affairs may appoint a trustee for the minor and the disposal of land by such trustee is subject to the consent of the Secretary for Home Affairs. The appointment and removal of such trustee are required to be registered in the Land Registry.

Deed of family arrangement

This deed is an agreement among the beneficiaries of a deceased's estate for the distribution of assets comprised in the deceased's estate, which sometimes varies their entitlement under the will or in law. This document should be lodged with the Stamp Office for adjudication to see if any ad valorem duty is payable since there may be an element of gift or agreement to dispose of property among the beneficiaries which attracts stamp duty.

Nomination

A nomination is a document whereby the purchaser under an agreement for sale and purchase of a property nominates a third party to take up the assignment of the property. As the purchaser has usually paid a deposit under the agreement for sale and purchase, he (as nominator) should in the nomination clearly renounce and relinquish all interests in the property to avoid any doubt as to whether there is a resulting trust of the property in favour of the nominator.

The law relating to resulting trust is complicated. If there is a nomination registered in the land register of a property, it is advisable for a prospective purchaser to seek legal advice as to whether the nominator under the nomination has clearly relinquished his interest in the property before entering into a provisional agreement for sale and purchase.

It should be noted that generally, a nomination may attract stamp duty as a chargeable agreement for sale unless the person being nominated to take up the assignment is a trustee or specified relative (such as a spouse or a parent or child) of the nominator.