Administration Of Estates Flashcards
What is intestacy
Intestate= dying without a valid will either totally or partially
Total= no valid will arising in different situations: deceased never made a will, invalid will (e.g age/mental capacity/non-compliance), decease made a will that was revoked, deceased made a will which fails to dispose of property (e.g sole beneficiary predecessor the testator)
Partial= only dispose of some property either deliberately, forgetfulness, acquiring property after writing the will or failure of a particular gift
Entitlement to intestate estate
Inheritance and trustees powers act 2014 (previously s46 administration of estates act 1925)
2 forms of entitlement
General and alternative
General entitlement - spouse and no children
Spouse and no children
- spouse receives everything subject to family provisions under the inheritance act 1975
- spouse= valid, voidable and even polygamous marriages (official solicitor to the senior courts v yemoh 2010) but not void marriages
- separated spouses still class as spouses except where an order of judicial separation has been granted and then they are no longer a spouse for intestacy rules- s18.2 matrimonial causes act 1973
- includes civil partnerships- CPA 2004
- survivorship- spouse must survive deceased for 28 days- s46 AEA 1925
Voidable marriages- s12 matrimonial causes act 1973 and civil partnership act s50 2004
- marriage not consummated owing to incapacity or wilful refusal of either party
- lack of consent due to duress, mistake or mental capacity
- where partner has changed gender- gender recognition act 2004
Void marriages- s11 matrimonial causes act 1973
- either party within prohibited degree of relationship (siblings/blood relations)
- either is below 16
- either party is already married/in breach of requirements
- polygamous marriage while one party is domiciled in England and wales
General entitlement- spouse and children
- estate is shared between them based on statutory formula
- spouse gets: £270,000+ interests (BOE rate) from the date of the deceaseds death, all personalities and half of the remaining part of the estate
- if the family home is owned jointly between the spouses, the surviving spouse takes the family home in addition to the above entitlement
- if not owned jointly- the family home is added to the remaining part of the estate to be shared in half with the children although spouses can request for it to be apportioned as part of the statutory legacy
Children- remaining part of estate in equal shares, only applies to children shared with deceased however does include adopted/foster children
General entitlement- children only, no spouse
- get all deceaseds estate
- children = biological and adopted children- s67.1 adoption and children act 2002
- stepchildren excluded from this definition regardless of closeness
- however step kids can apply for financial provisions as ‘child of the family’ under inheritance act 1975
- entitlement based on ‘per stripes’ rule
Alternative entitlement to estate
Deceased dies without children or spouse
- parents in equal shares
- siblings of full blood
- siblings of half blood
- grandparents
- aunts, uncles of full blood
- aunts, uncles of half blood
- bona vacantia= crown
Once one is met- all goes to them regardless of who is left
Family and dependent provisions
Where the law allows a person who hasn’t received anything from the assets to apply for a provision from the courts to be allowed something- its a favour from the court not a right
- persons entitled to apply for provisions are specified in s1:
Surviving spouse or civil partner= such financial provisions as would be reasonable in the circumstances e.g such financial provision he/she would have gotten in the divorce settlement
Former spouse/civil partners who have not remarried= rare chance of success, must not have been catered for in the divorce settlement
Children= minor children are straightforward, such provisions to cover education, training and basic welfare. Adult children is more complicated- usually must establish a moral claim to be maintained by deceased e.g they cared for the deceased
Children of the family- re Callaghan- must have been financially maintained by the deceased prior to death. S1.3- financial contribution towards reasonable needs other than for full valuable consideration of a commercial nature
Cohabitants- must have lived with deceased for 2 years immediately preceding the death, as husband and wife (s1.1), application must have been bought within 6 months from when probate or LR taken out in respect of estate or even before its taken out- s4
Three stages: eligibility of applicant, whether reasonable financial provision has been made for applicant in will/intestate succession; if not, what provisions to make for applicant from the deceaseds estate- llott v blue cross 2017
- right to apply is a personal right- terminates with death of applicant
- court- high court or county court
- court can order a lump sum payment, instalment or transfer of property
Administration of estate
Who administers the estate- decease personal representative (PR)- 2 types: executors (probate- where there is a will) or administrators (letters of administration i.e. intestate estate)
Executors (probate)
- executors are the PR’s appointed by the testator under his will to administer his estate
- probate is only granted for a will and allows the executor to distribute the assets
- allows executor to have ownership in order to distribute them to the named people
- signs over title deeds
- must be clearly appointed in the will otherwise will fail for uncertainty- in the goods of Blackwell 1877
- can be appointed impliedly - in the goods of Adam 1875
- not sufficient to show a person is sole beneficiary or a trustee- re pryse
- ‘carry out his will’- implied appointment- in the goods of Russel
S50 administration of justice act 1985- where executor fails/refuses or is incapable to do it the court can appoint someone else
Chain of representation: an executor of a sole or last surviving executor of a testator is the executor of that testator so long as the chain is unbroken. The last in the chain is the executor of every preceding testator- s7.2 AEA 1925
Number of executors: no restriction but probate wont be granted to more than 4- s114.1 SCA 1981
Capacity to act as executor: anyone can be appointed however probate wont be granted to a minor or someone with an unsound mind- s116 SCA
Renunciation of appointment: executor can renounce appointment by a written instrument filed at the probate registry renouncing whole of executorship- cant renounce a part
- where executor neither obtains probate nor renounces- they can be forced to make a decision via citation by the court under s112 SCA 1981- any beneficiary is entitled to apply for a citation.
Administrators
PR appointed by the court by a grant of letters of administration
Arises in 2 situations: where there is no will, where there is a will but no executor (fails/refuses/incapable)
- persons entitled to apply for letters of administration are determined in order of priority which aligns with intestacy rules
- persons in category cannot apply where there are others with a priority right until they have been ‘cleared off’
Duties:
- ascertain and collect assets of estate
- manage the estate
- pay debts and liabilities of estate
- make arrangements for funeral
- distribute assets in line with will or intestacy rules
- have at least one year (executors year) from the date of death before they can be called on to distribute estate- s44 AEA 1925
- can begin to act before obtaining probate
- for intestate estate- property only vests on administrator upon grant of letter of administration- this cant get granted- s9.1 AEA
Applying for probate
Application for grant can be made to principal registry of family division or district probate registry
Family division deals with common form probate
Chancery division deals with solemn forms e.g when validity of will is in question
No grant can be made less than 7 days after death
No grant can be made within 14 days of the death except with leave of court
Application usually made after 6 months following payment of inheritance tax
Caveats=entered in the court register to prevent a grant being granted without notice to the caveator
Usually entered where the caveator intends to challange will- expires after 6 months but can be extended
Revocation- court has wide discretion to revoke a grant wrongly issues- s112 SCA
