One of the duties of the personal representative, an administrator or an executor, would be to settle all outstanding debts before distribution of assets to the beneficiaries.

Once the administrator or executor has fulfilled his duties, the assets that remain can be distributed to the beneficiaries of the estate. It is only at this point that the beneficiaries have a beneficial interest in the assets that remain. (Remember trust law. One of the 3 certainties is certainty of subject matter. Before the debts of the estate, funeral expenses or general pecuniary legacies are cleared, the beneficiaries only have an inchoate interest in the estate. There is no certainty of subject matter and therefore no trust can be formed.)

It is at this point where the personal representative takes of his administrator or executor hat and places on his trustee hat. From the moment the beneficiaries have a beneficial interest in the estate, a trust is formed and the personal representative becomes a trustee. The usual way that this happens is that the estate is treated as a whole. The debts, funeral expenses or general pecuniary legacies are cleared and the beneficiaries have a beneficial interest in the assets that remain in the estate.


In less common cases, the doctrine of asset may apply.

An assent is an acknowledgement by a personal representative, that an asset of the deceased is no longer required for the payment of debts, funeral expenses or general pecuniary legacies.

The personal representative looks at the deceased’s assets and finds that the deceased’s assets are more than sufficient to pay the estate’s debt, funeral expenses or general pecuniary legacies. He can then elect to perfect a gift earlier.

For example:
Total assets of deceased’s estate = $10 million of cash in bank account, 3 properties worth $5 million each, 2 cars worth $200,000 each.
Total debts of deceased’s estate = $500,000
All other expenses = $100,000

It is clear that the $10 million of case in the bank account is more than sufficient to clear the debts of the estate and all other expenses. Therefore, the personal representative can elect to assent to the 2 cars worth $200,000 each (i.e., he can distribute the cars to the beneficiaries early).

Upon assent of a specific asset by the executor, that particular gift is perfected, and the beneficial ownership of the bequeathed asset is passed to the beneficiary. This is by virtue of the dispositions of the will for that particular asset which became operative due to the executor’s assent (Seah Teong Kang (co-executor of the will of Lee Koon, deceased) and another v Seah Yong Chwan (executor of the estate of Seah Eng Teow) [2015] 5 SLR 792 (“Seah Teong Kang”) at [25]-[26]).

In Seah Teong Kang at [34], the court inferred from the conduct of the executor that he had assented. The conduct was his attempts at making cheque payments which represented the monetary value of the shares upon the company’s winding up.

(Note: if an individual is the sole executor and sole trustee and if he assents to an asset that is land then he cannot sell the land as a sole trustee.)


While the assent can be inferred from the conduct of the personal representative, the assent must be equivocal. 

There needs to be clear indication by the executor that the bequeathed asset is no longer needed for the purpose of administration, and it may be passed under the testator’s will. The executor may do this informally and it may be inferred from his conduct, but it must be clear that the executor has assented (Seah Teong Kang at [27]).