Administration: Rights, Liabilities, and Actions Flashcards
What is a caveat and when is it used?
A caveat is a legal notice lodged at HMCTS to prevent the issue of a grant of representation. It is used when there is a dispute over the validity of a will or the capacity of the executor. A caveat lasts for six months and can be extended
What is a citation and what are the different types of citations?
A citation is a method of forcing a party with a right to a grant to act. The types of citations are:
○Citation to take probate: Used when an executor has intermeddled but not applied for a grant.
○Citation to propound will: Used when someone is aware of a later will that affects their entitlement.
○Citation to accept or refuse a grant: Used to clear off someone with a prior right to a grant who hasn’t applied
What does ‘passing over’ mean in the context of estate administration?
Passing over is when the court makes an order to bypass an unwilling executor and appoint someone else to administer the estate. This is preferable to compelling an unwilling person to take a grant
What rights do beneficiaries have regarding the administration of an estate?
Beneficiaries have the right to:
○Compel due administration of the estate.
○Inspect accounts and request information.
○Bring administration proceedings.
○Not have the estate distributed before the “executor’s year” has passed.
What is “executor’s year”?
Executor’s year is a period of one year from the date of death during which the personal representatives are not required to distribute the estate
What is a breach of fiduciary duty by a Personal Representative (PR)?
A breach of fiduciary duty occurs when a PR places themselves in a conflict of interest or makes an unauthorised profit. For example, buying property from the estate without proper consent or retaining a commission.
What is devastavit?
Devastavit is when a PR causes loss to the estate through a breach of duty, such as misuse of assets, maladministration, or negligence. PRs are personally liable for losses due to devastavit.
What are some defences to a claim of devastavit?
Defences to a claim for devastavit include:
○ Section 61 Trustee Act 1925: The court may excuse a PR if they acted honestly and reasonably.
○ Exclusion clause in the will: The will may exclude or modify liability.
○ Acquiescence of beneficiaries: Beneficiaries consented to the breach.
● Protection against unknown or missing claimants: PRs advertised for claims. * Limitation: A 12-year time limit may apply for some claims
What actions can a beneficiary take if assets are wrongly distributed?
A beneficiary can:
○Bring a proprietary claim to recover the assets or their traceable proceeds.
○Bring a personal claim for compensation against the recipient, provided remedies against the PRs have been exhausted
Can Personal Representatives (PRs) be removed?
Yes, the court has discretion to remove PRs under s 50 Administration of Justice Act 1985. The main factor for the court is the welfare of the beneficiaries. PRs cannot retire without a court order
What liabilities do Personal Representatives (PRs) have to creditors?
PRs take on the deceased’s debts, but are only liable to the extent of the deceased’s assets. PRs may be personally liable for devastavit if they cause loss to creditors through breach of duty
When does the transition from Personal Representative (PR) to Trustee occur?
PRs become trustees after they have completed the administration of the estate, which includes paying debts and distributing assets. For real estate, this transition is marked by the execution of an assent to themselves as trustees.
