Administration: PRs - Appointment of Executors, Administrators, Renunciation and Reservation of Power, and Unable and Unwilling to Act

Question 1

what PRs act when there is a will?

Answer 1

PRs can be appointed via will (executor) or appointed by court under rules (administrator)

scope of appointment can be limited by the testator so the grant issued in their name will be similarly limited

Question 2

who can be appointed as executor?

Answer 2

any adult with mental capacity can be executor

Question 3

what is the maximum number of executors that can act?

what can be done if the will names more than the maximum number?

Answer 3

Max 4 executors named in the will can apply for the grant and be named on the grant

if the will appoints more than 4 executors, then the first 4 to apply for grant are executors and the rest have ‘reserved power’ if vacancy arises before administration is complete - they can then apply for a grant of double probate

Question 4

if not all of the executors named in the will are going to act, what must the applying executors do?

Answer 4

Applying executors must explain to the probate registry why not all named are applying

example: provide death certificate of pre-deceasing executor; form of renunciation

Question 5

what is the minimum number of executors required to act?

Answer 5

1 executor is enough but it is best practice to include 2 if one cannot act

1 executor is enough even if there are minor interests (because parent/guardian can give good receipt or executor can appoint trustees for the trust) or life interest trusts in the will

BUT where the will creates a trust then 2 trustees must act - although the will does not need to appoint them as they can be appointed by the executor when the trust is set up

Question 6

types of executors that can be appointed (6)

Answer 6

1) trustees of testamentary trusts
2) Law firm (partnership)
3) LLP named as such
4) trust corporation named as such
5) professional executors
6) guardians expressly appointed for minor children

Question 7

when is an executor who is named in the will UNABLE to act? (capacity to act)

Answer 7

An executor named in a will is UNABLE to act as PR if they:

1) pre-deceased testator / died before taking out grant

2) are a minor

3) lack capacity

4) former spouse/CP and divorce was after will was executed = treated as pre-deceased testator UNLESS the will expressly state they can act as executor despite divorce

Question 8

if the will appoints a minor as an executor, can they act?

Answer 8

the minor cannot act as executor because they do not have capacity to act (unable to act)

but the appointment is valid

2 options:
(1) power can be reserved to the minor who can make an application when they reach 18 if the administration is incomplete
OR
(2) an adult can make an application on behalf of a minor

(the same applies if the will appoints an executor who lacks mental capacity)

Question 9

can a person appointed as executor under the will give the right to be an executor to someone else?

Answer 9

no - only those named in the will can take out a grant

but a named executor can formally appoint someone to act on their behalf under a power of attorney

but this can only be done after the grant is taken as an executor cannot delegate their power to apply for the grant under the will

Question 10

what happens if an executor dies after a grant is taken out but before administration is complete?

2 cases: if other PRs remain vs no other PRs remain

Answer 10

if at least 1 PR remains = they can continue administration (but can appoint another executor themselves if at least 2 are required)

if no PRs remain = 2 cases -

1) chain of representation applies = if the last remaining executor dies, their own appointed executors can act as executors for the original deceased’s estate

• operates automatically when the executor of the dead executor takes out a grant for the dead PR’s estate (no additional grant required)
• does not apply to administrators of the deceased executor

or

2) grant of letters of administration de bonus non is issued = if there is no chain of representation (e.g., executor does not appoint an executor), a second grant will be issued

Question 11

Rule 20 NCPR - which persons can be administrators and apply for a grant of letters of administration (with will)?

Answer 11

Rule 20 order of priority =

(1) executor

(2) trustee of residuary estate

(3) any residuary beneficiary under the will OR any beneficiary of the estate under intestacy rules where there is partial intestacy

(4) PRs of anyone in (3) other than PR of a trustee or life tenant of the residue

(5) any other beneficiary or creditor

(6) PRs of anyone in (5)

RULES =

• a person in one category cannot apply if anyone in a higher category is willing to act
• those within the same category have an equal right to apply (although B with a vested interest is preferred over B with contingent interest)
• applicants must explain why anyone with a better right to apply is not applying (aka ‘clearing off’)
• applicants do not need to explain why a person in the same category with equal entitlement is not making an application

Question 12

Rule 22 NCPR - administrators who can apply for grant of letters of administration

Answer 12

Rule 22 order of priority = any beneficiary who will receive an interest in the estate who is -

1) spouse or CP (must survive deceased by 28 days)

2) children of deceased

3) parent of deceased

4) whole blood sibling

5) half-blood sibling

6) grandparents

7) uncles/aunts of whole blood

8) uncles/aunts of half blood

ALSO: issue of children, siblings, uncles, and aunts are included in their parent’s ranking order where their parent has pre-deceased

RULES =

• A person in one category cannot apply in priority to someone in a higher category, those within the same category have an equal right to apply, and applicants must “clear-off” anyone with a better (but not equivalent) right to apply
• PRs of any applicant who survived the deceased but died before taking a grant may apply on their behalf (but application by living person in same category is preferred)
• applicants must demonstrate nature of familial relationship with deceased
• applicant MUST also have a BENEFICIAL ENTITLEMENT to the estate under the intestacy rules - but if no one with a beneficial entitlement will apply then a person with no immediate entitlement can apply provided they would have benefitted if the estate was larger

Question 13

when will administrators NOT have capacity to act or apply for a grant?

Answer 13

1) lacks mental capacity = cannot apply for grant

2) died

3) minors = a minor cannot act as administrator but it is possible for someone to apply for a grant on their behalf

4) (for intestacy) if a person does not have beneficial entitlement to the estate (unless they would have had the estate been larger)

Question 14

can a minor be an administrator?

Answer 14

minors entitled to apply to be an administrator do not have the capacity to act

BUT an adult with capacity can apply on their behalf where:

• no adult with equal or greater entitlement will act
• the minor is the only person in the category having the greatest entitlement

an application made by an adult with equal entitlement to apply is given priority over an application made on behalf of a minor

Question 15

how many administrators are required to act? what is the max number of administrators?

Answer 15

only 1 administrator is required UNLESS there is a minor or life interest trust in the estate or a trust of land - then 2 are required

Where 2 administrators are required but there is only 1 able/willing person in the category with best entitlement to apply = that person may apply for the grant with somebody from the next category of entitlement

A maximum of 4 applicants may apply

Question 16

what are the options for an executor UNWILLING to act? (4 options)

Answer 16

(1) RENUNCIATION = formally give up their right to apply for probate as though they were not appointed - final and cannot be undone without court approval

(2) RESERVING POWER = leaves option to apply for probate later BUT there MUST be at least 1 other executor who takes out the grant of probate

(3) APPOINTING AN ATTORNEY under a power of attorney = acts on executor’s behalf

(4) CONTINUE TO ACT = and ask co-executors and/or silicitors to do day-to-day work (but mst be involved in decision-making and sign docs unless authorises solicitor to sign on behalf)

Question 17

Renunciation - executors

what is renunciation?
can the executor later change his mind?
what is the procedure? (3)

Answer 17

• RENUNCIATION = formally give up their right to apply for probate as though they were not appointed
• it is final and cannot be undone without court approval
• procedure =

1. executor signs a form of renunciation (deed)
2. those applying for the grant must submit the form to the probate registry as evidence of why the executor is not making an application
3. the renunciation is noted on the grant once issued

• BUT EXECUTOR CANNOT RENOUNCE IF THEY INTERMEDDLED WITH THE ESTATE

Question 18

what does intermeddling with the estate mean? what is not intermeddling?

Answer 18

EXECUTOR CANNOT RENOUNCE IF THEY INTERMEDDLED WITH THE ESTATE

• intermeddling = taking steps indicating they accepted appointment
• Example of intermeddling = obtaining, receiving, or holding deceased’s assets + forgiving debts or liabilities of the estate + paying debts + selling assets + disposing of personal property
• not intermeddling = acts of common humanity like arranging funeral or taking steps to secure estate assets

Question 19

Reserving powers - executors

what is it?
can the executor later change his mind?
what are formal requirements?

Answer 19

• executor does not want to act initially but wants the option of applying for grant later can reserve the power
• BUT there must be 1 other executor taking out the grant
• to act later = executor applies for a GRANT OF DOUBLE PROBATE - only possible if administration is incomplete
• there is no form of reserving power
• if power is reserved, the other acting executors MUST give him notice of their intention to apply
• the reservation of power will be noted on the grant
• (can be done by minors and persons lacking capacity)

Question 20

Appointing an attorney - executors

when is this a good idea for executors?
what is the process?
when can this be done?

Answer 20

• executor who does not want to be directly involved with administration can appoint attorney to ACT and sign documents ON THEIR BEHALF using a power of attorney
• process = notice must be given to other executors + power of attorney provided to the probate registry as part of the application
• desirable where executor does not want to be or cannot be involved directly in administration (abroad, ill, busy) but still wants input in decision-making and instructing attorney
• can delegate functions to attorney for a MAX OF 12 MONTHS
• when can it be done = the power can be given ONLY AFTER the executor obtained the grant - CANNOT be done before grant is obtained because this would mean the executor is delegating the power to apply for the grant which is not allowed
• UNLESS the executor is not capable of acting (stroke/minor) ==> their attorney may apply for a grant of representation on their behalf for the use and benefit of the incapacitated executor

Question 21

what are the options to an administrator with the right to apply but who is UNWILLING to act? (2 options)

Answer 21

(1) RENUNCIATION

(2) APPOINTING AN ATTORNEY

Question 22

Renunciation - administrators

what is it
can the executor later change his mind?
what is the procedure? (3)

Answer 22

• RENUNCIATION = formally give up their right to apply for a grant and the next best person entitled to apply can do so
• procedure = form of renunciation signed + submitted to probate registry with application for grant + renunciation noted on grant
• renunciation CAN be done at any time before the grant is issued
• renunciation CANNOT be undone after the grant is issued (and no right to reserve power so think carefully when renouncing)
• people are still allowed to renounce even if they intermeddled with the estate
• an executor who renounces their right to apply for grant of probate can still apply as administrator under NCPR 20/22

Question 23

appointing an attorney - administrators

what is it?
when can this be done?

Answer 23

someone who does not want to be directly involved in administration can appoint another person under a power of attorney to act on their behalf

A person can delegate functions to an attorney both AFTER AND BEFORE a grant is obtained

• if appointing after grant is obtained = max 12 months + notice given to other administrators
• if appointing before grant is obtained = power of attorney must be provided to probate registry

Question 24

citations - what is it? when is it needed?

Answer 24

it is possible to obtain a court order using the citation process in order to:

• require a person to take out a grant
• remove a person’s right to apply for a grant
• authorise another person to take on the administration

in situations where:

• those entitled to apply refuse to act but also refuse their renounce their right to apply
• an executor intermeddles in the estate (unable to renounce) but refuses to apply for the grant

Question 25

when is there a requirement to have at least 2 PRs?

Answer 25

Executors: only 1 is enough in all cases (but note that 2 trustees are required if a will creates a trust - although the will does not need to appoint them)

Administrators: 2 administrators must be appointed where -

• there are minor interests in a will or under intestacy rules
• there is a life interest trust under a will
• there is a trust of land