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Wills > Administration of the will > Flashcards

Administration of the will Flashcards

1
Q

what if B does not want to inherit under the will

A

post death variation or post death disclaimer

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2
Q

what type of transfers are post death variation and disclaimer

A

PETs - so chargeable to IHT if B dies within 7 years

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3
Q

how can IHT be avoided on post death variation and disclaimer if B dies within 7 years

A

signed writing, within 2 years of Ts death, state s142 applies, not for consideration

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4
Q

requirements for B to make a post death variation

A

B must have capacity to consent or court can consent if it is for their benefit

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5
Q

how is property distributed if B makes a post-death disclaimer

A

As if B died before T

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6
Q

how to avoid CGT on post death disclaimer and variation

A

within 2 years of Ts death

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7
Q

what is an affidavit

A

evidence of validity of the will - a sworn oath in front of a solicitor not representing the PR

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8
Q

types of affidavits

A

knowledge and approval
plight and condition
due execution
lost will

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9
Q

affidavit of knowledge and approval

A

when there is doubt about Ts knowledge and approval of content of will. evidence provided by someone who can speak of the facts eg didn’t sign or was illiterate and not adapted for this

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10
Q

affidavit of due execution

A

no attestation clause or somehow defective or doubtful get evidence from a witness that can establish the will was properly executed

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11
Q

affidavit of plight and condition

A

when will appears to have been interfered with - made by someone with knowledge of the facts

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12
Q

lost will affidavit

A

assumed to have been destroyed by T to revoke it but if it was an accident a copy can be sent to registrar with evidence from applicant for grant of probate

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13
Q

which grant is applied for and how is this done - will and executor

A

use form PAIP for a grant of probate

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14
Q

which grant is applied for and how is this done - will but no executor

A

use form PAIP to get letters of administration with will annexed

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15
Q

who is executor for letters of administration with will annexed

A

NCPR 1987 r20 - usually the residue beneficiary

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16
Q

which grant is applied for and how is this done - no will

A

use form PAIA for simple letters of administration

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17
Q

who is administrator for simple letters of administration

A

NCPR 1987 r22 - usually main intestacy B

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18
Q

how many executors are needed

A

one - even if there is land

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19
Q

how many trustees are needed

A

at least two

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20
Q

how many administrators are needed

A

one unless there is a minor B or a B with a life interest only then there must be 2 administrators

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21
Q

what authorises an executor to act - how soon can they act

A

authority is from will - can act immediately from death but some things that they cannot do without grant

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22
Q

what does a grant of probate confirm

A

the authority to act, title to property, validity of will

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23
Q

what authorises an administrator to act - how soon can they act

A

the letters of administration gives them authority

it is not retrospective to death so must wait for grant to act

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24
Q

what goes grant of letters of administration confirm

A

title to property, validity of will

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25
Q

which assets can executor deal with without a grant of probate

A

chattels- moveable personal property
cash in deceased possession - not in bank
can pay B up to 5k of assets
access money in national savings bank and trustee savings bank but not other banks
can access national savings certificates, premium bonds, money in building societies and friendly societies
assets which don’t pass through PR
joint property - survivorship - with death certificate
insurance policies written in trust
pension benefits - with death certificate

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26
Q

when does the administration period start and end

A

starts at death and ends when residuary is vested in B

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27
Q

how long does PR hold office

A

life

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28
Q

what is a devastavit

A

a breach of PRs duty

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29
Q

what is PRs primary duty

A

to collect and administer estate

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30
Q

when is PR liable for loss of estate

A

when there is loss resulting from their breach of duty - not liable for Co-PR breach

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31
Q

are PRs liable for breaches of co-PRs

A

no

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32
Q

when can court relieve PR of liability for breach of duty

A

when they acted honestly, reasonably and ought fairly to be excused

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33
Q

can the will excuse PR of breach of duty

A

yes can exclude this

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34
Q

what if PR fails to pay B or creditor

A

PR is personally liable

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35
Q

how to ensure there are no unknown Bs

A

get s27 order

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36
Q

what is a s27 order

A

Protects PR for liability against unknown Bs

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37
Q

can an unknown B claim anything if there is a s27 order

A

yes against Bs - not against PR

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38
Q

how to get s27 order

A

advertise in london gazette, local paper where T owned land and any court requirements. PR must make searches of prudent land buyers, wait 2 months before distributing

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39
Q

how to protect against missing Bs and creditors

A

keep back some assets
take indemnity from Bs
take insurance but if it falls short PR must add to it
get a benjamin order

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40
Q

what is a benjamin order

A

court order to distribute on basis that missing B is dead

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41
Q

duties of PR

A

duty to collect
duty to preserve
duty to act with reasonable care

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42
Q

which assets can be used to pay debts of the estate

A

any

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43
Q

how do ownership of assets pass to PR

A

executors - automatically on death

administrators - on grant

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44
Q

can PRs deal with assets that pass independently of the will

A

no

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45
Q

what are testementary expenses

A

those incidental to the proper performance of duties of PR

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46
Q

when do you pay back the money loaned to pay IHT if you took a first proceeds undertaking

A

as soon as money is realised

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47
Q

what if the executor has no capacity

A

attorney can get grant for their use and benefit. executor who lacks capacity cannot apply for grant

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48
Q

what if the executor is a minor but there are other adult executors

A

the other adults can apply for grant and reserve power for minor to take grant when 18. minor apply for grant of double probate when 18

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49
Q

grant of double probate

A

minor applies for this when turning 18 to act alongside other adult executors

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50
Q

what if executor is minor and there are no other executors

A

parents of minor apply for grant of letters of administration with will annexed. Minor can apply for cessation of grant when 18

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51
Q

can executors renounce their right to take grant

A

yes - unless they have intermeddled with estate (done PR tasks)

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52
Q

what is executor renounced position

A

as if they have never been appointed

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53
Q

how to renounce executor position - form

A

PA15 signed, witnessed and submitted to probate registry

54
Q

does renouncing executor or administrator role end position as B or trustee

A

no - would have to disclaim these seperately

55
Q

max number of executors

A

4 - can reserve power to others to take out grant later if vacancies arise

56
Q

why are there two versions of PAIA and PAIP

A

one for professional representative and one if you don’t have a professional representative

57
Q

when to use PAIA

A

no will

58
Q

When to use PAIP

A

will - grant of probate or letters of administration with will annexed

59
Q

max number of administrators

A

4 - cannot reserve power to others

60
Q

can you reserve power to take grant to other administrators if there is more than 4

A

no - can only do this for executors

61
Q

can administrators renounce postition - form

A

yes use form PA16

62
Q

does intermeddling impact an administrators right to renounce position

A

no - only for executors

administrator can renounce even if they have intermeddled but executor cannot

63
Q

NCPR 1987 r20

A 
sets out who can apply for letters of administration with will annexed:
executor
residue B
residue B's PR
any other B or creditor
PR of any other B or Creditor
64
Q

clearning off

A

when you explain why you should be allowed to take grant because there is no one in a higher category

65
Q

can a minor act as an administrator

A

no - other people in same category should apply instead. if no one else in same category parents apply for minor’s use and benefit
grant is limited until they reach 18

66
Q

max number of administrators

A

4 - cannot reserve grant for later vacancies unlike executors

67
Q

how to renounce administrator position - form

A

PA16

68
Q

does intermeddling cause administrator to lose right to renounce

A

no (only executor)

69
Q

order of people able to take grant of simple letters of admin when totally intestate

A

NCPR 1987 r22 - same as Bs on intestacy

must have a beneficial interest in estate by virtue of intestacy rules

70
Q

NCPR 1987 r22

A

order of people able to take grant of simple letters of admin when totally intestate

71
Q

if there are several people entitled to the same degree to apply for grant of administration can only one apply for grant? do they need to notify each other?

A

yes - they don’t need to notify the other

72
Q

what is a solvent estate

A

theres sufficient funds to pay all debts and liabiltiies even if theres nothing left for B

73
Q

who is responsible for paying a secured debt

A

B who receives the assets unless there is a specific reference to that specific secured debt in will - not enough just to allocate money for debts generally

74
Q

order in which assets must be applied to pay debts in solvent estate

A 
anything not disposed of it will
residue 
money for debts 
money charged to debts (remainder goes to b)
pencunary gifts funds
property gifts
75
Q

what is an insolvent estate

A

not enough money to pay debts and liabilties

76
Q

in what order are liabilties paid in an insolvent estate

A

secured creditors
funeral and testementary expenses
unsecured creditors

77
Q

what if you administer an insolvent estate as a solvent one

A

this is a breach of PR duty so if unsure administer as if it is insolvent

78
Q

how to transfer house to B

A

assent - written, signed but not deed

send asset to land registry

79
Q

how to transfer shares to B

A

Stock transfer form

80
Q

is B entitled to income as it arises

A

no - must wait until asset is vested in them

but liable for the IT from death

81
Q

who covers the cost of transfering assets to B

A

B - so B must refund PR

82
Q

how long does PR have to pay pecuniary legacies

A

no need to pay them before the end of 1 year after death
but after 1 year interest is due to B
unless will provides for it to be paid sooner or due to creditor or minor B

83
Q

what is the final task of a PR

A

to produce estate accounts for residue B

84
Q

what do estate accounts show

A

all assets of the estate, payment of debts and balance remaining.

85
Q

what effect do the estate accounts have

A

B signs it to show approval which releases PR from liability unless fraud or failure to disclose assets

86
Q

when does PR need to produce separate estate accounts

A

if there is a life interest or minority interest

87
Q

what must PR do immediately following death regarding IT and CGT

A

account for IT and CGT from 6 April - death
can use all reliefs usually allowed
take into account when calculating IHT

88
Q

who pays IT on income paid to estate during administration

A

PRs
don’t get usual reliefs
can deduct interest on IHT loan

89
Q

IT rates for PR

A

7.5% dividends

20% other property

90
Q

when is CGT payable by PR

A

not when assets are transferred to B

when PR sells assets to pay liabilities

91
Q

rate of CGT for PRS

A

20%

or 28% for residential property

92
Q

what reliefs can be applies to CGT

A

annual exemption for year of death 12,300

plus annual exemption for 2 years following death if administration lasts that long

93
Q

what can be deducted from gain when calculating CGT

A

acquisition costs, incidental costs of disposal and cost of valuing estate

94
Q

how can a loss for CGT be relieved

A

set against gains from other sales by PR in same tax year or any future tax year in administration period
any loss unrelieved at end of administration cannot be transferred to B

95
Q

how and when does PR account for IT and CGT

A

each year
if not complex estate informal payment without return
if complex estate formal return

96
Q

when is an estate complex

A

estate worth more than 2.5m, tax due for whole of administration period exceeds 10k or value of assets sold in tax year exceeds 500k

97
Q

does B of will have an equitable interest

A

no - PR has equitable and legal interest until asset vested in B

98
Q

does B have right to PRs reasons

A

no - but can apply to court

99
Q

how soon does PR have to distribute assets

A

not bound to distribute before end of executors year

100
Q

executors year

A

1 year from death

101
Q

can B inspect accounts and inventory etc

A

yes PR must keep accurate records and B or anyone interested in estate can inspect

102
Q

who can lodge a caveat

A

family

103
Q

what does a caveat do

A

prevents the issue of a grant

104
Q

requirements to lodge a caveat

A

just cause

105
Q

effect of caveat

A

no grant can be issued until it is removed or ceases to be effective

106
Q

how long does a caveat last

A

6 months but can be extended

107
Q

why lodge a caveat

A

doubt eg think executor lacks capacity

108
Q

what to do if there is a caveat

A

applicant for grant issues a warning to caveator who must make interest known in 8 days or applicant can remove caveat

109
Q

what is a citation

A

a way of forcing the party with right to grant to act

110
Q

who can apply for a citation

A

B applies to probate registry

111
Q

types of citation

A

take probate
propound will
accept or refuse grant

112
Q

citation of take probate

A

if PR lost right to renounce by intermeddling but hasn’t applied for grant - if they still don’t can get letters with will annexed by person entitled under NCPR r20

113
Q

citation to propound

A

if there is a will that would deminish entitlement under other will or intestacy - see if other Bs come forward, if they don’t can continue

114
Q

citation to accept or refuse grant

A

clear off people with prior right to grant who have not applied - if they don’t take steps to get grant then citor can get one

115
Q

better option to citation of probate

A

apply to probate registry for an order passing over that person in favour of someone else - if they don’t want to do it they will probably do a bad job so no point forcing them

116
Q

who can bring administration proceedings

A

anyone interested in the estate

117
Q

2 categories of administration proceedings

A

applications limited to a particular issue (eg PR needs guidance on wording)
application for general administration order where court supervises the PR or replaces them

118
Q

what is a general administration order

A

court supervises PR and PR cannot exercise powers without courts permission or court may appoint a judicial trustee to act as PR with another person or alone

119
Q

who can bring a devastavit claim and why would they do this

A

B can claim when PR has caused loss to the estate through breach of duty

120
Q

what if a devastavit claim is successful

A

PR liable to pay out of own assets

121
Q

when would B bring a devastavit claim

A

misuse of assets (takes for self)
maladministration of assets (not in accordance with will)
negligence

122
Q

defences to devastavit claim

A

s61 - honestly and reasonable and ought fairly be execused
exclusion clause in will
Bs consented
S27 order, benjamin order, insurance or indemnity
limitation period

123
Q

what is the limitation period for an underpaid B to claim their share

A

12 years from date on which right to receive estate accrued

no time limit if fraud or PR took property for themselves

124
Q

can the court remove a PR

A

yes - but must be at least 1

125
Q

can a court replace a PR

A

yes

126
Q

what will the court consider when replacing or removing a PR

A

welfare of B

127
Q

can a cause of action continue against T after death

A

yes would be against PR

128
Q

what happens to Ts liability under contracts

A

PR must perform these to extent of deceased’s assets

6 years limitation

129
Q

remedy for B if PR distributes assets to someone who isn’t entitled

A

can follow assets to recipent and either bring proprietary claim for assets or replacements (unless bona fide purchaser) or bring personal claim for compensation against recipient as long as all remedies against PR are exhausted

130
Q

time limitation period for B to bring a proprietary or personal claim against recipient of assets who should not have received the assets

A

12 years

Wills (5 decks)

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