C8/9: Probate in Action

Question 1

Who are personal representatives?

Answer 1

PRs is a generic term covering both executors and administrators.

Question 2

Where does an executor derive their authority from?

Answer 2

Executors derive their authority from the will.

Question 3

Why does an executor still need a grant of probate if their authority to act derives from the Will itself?

Answer 3

It serves as sufficient evidence to relevant parties, such as the deceased’s bank, that the deceased has died, that the will under which the executor is appointed was the last will (and was validly executed), and that the person claiming to be the executor is the executor.

Question 4

How does an executor accept the position under a Will?

Answer 4

An executor accepts the office (role) by making an application to the probate registry for the grant of probate.

Question 5

When can the executor start to do their duties?

Answer 5

They can act immediately without a grant, but it is needed for dealing with most third parties.

Question 6

What is “renouncement” under s5 Administration of Estates Act 1925?

Answer 6

If a person doesn’t want to be an executor, they must renounce probate under s5 AEA 1925. They must sign a written renunciation, which is filed at the probate registry.

Generally, the executor must renounce the whole of the job: they cannot partially accept or renounce. It is possible to resign from the office of executor but remain a trustee appointed under the will.

Question 7

What is “intermeddling” for executors who wish to renounce?

Answer 7

If a person wants to renounce probate, they mustn’t do anything in relation to the winding up of the estate, e.g. gathering the assets or paying the debts. This is intermeddling, which could mean that they face personal liability. (Not all acts typically carried out by executors will constitute intermeddling: everything will depend on the intention with which they were done.)

Question 8

Define “executor de son tort” and give a case example.

Answer 8

An executor de son tort (literally, “as a result of his own wrongdoing”) is someone who intermeddles in the estate without any authority under the will and may incur personal liability for carrying out these actions.

In Long and Fever v Symes and Hannam [1832], the executors advertised in a local paper for claims against the estate but failed to apply for probate. It was held that they had accepted the office by intermeddling.

Question 9

Would planning a funeral count as intermeddling? Can a renouncing executor do this?

Answer 9

No. Someone who carries out “humanitarian” acts, such as arranging a funeral or looking after the deceased’s pets, will not be regarded as an executor de son tort. An executor who does such things may still renounce.

Question 10

What is an alternative to completely renouncing as an executor?

Answer 10

An alternative is to have powers reserved if there are two or more executors. They won’t be involved initially but reserve the right to come in at any point to get involved.

Question 11

What are the personal representatives called on intestacy?

Answer 11

Administrators - those who have a beneficial interest in the estate. They are appointed by the court and derive their authority to deal with the estate from the grant of letters of administration issued by the probate registry.

Question 12

What is the difference between an executor and an administrator? Why is this distinction important?

Answer 12

There is a difference between the ways in which executors and administrators receive their authority to deal with a deceased person’s estate, and this gives rise to a difference in the time at which they can start to deal with the assets.

• An executor’s authority is derived from the will itself. This means that when a testator dies, their executor is immediately entitled to deal with the deceased’s assets and, in theory, needs no further documentation to appoint them.
• The administrator does not have any authority to act until the documentation comes through.

Question 13

Where would you find the order of entitlement to apply for a grant on intestacy in statute?

Answer 13

r22 Non-Contentious Probate Rules 1987 (NCPR 1987(

Question 14

According to r22 Non-Contentious Probate Rules 1987 (NCPR 1987), who is entitled to apply for the grant of letters of administration?

Answer 14

Those who have a beneficial interest in the estate of the intestate - relations of the deceased or (finally) a Treasury Solicitor on behalf of the Crown.

Question 15

What is the order of entitlement to apply for a grant on intestacy under r22 Non-Contentious Probate Rules 1987 (NCPR 1987)?

Answer 15

This order of priority is strictly applied and is as follows:

1) surviving spouse/civil partner;
2) children, and if they passed before the intestate, their own issue (grandchildren);
3) parents;
4) brothers and sisters of the whole blood, or their issue if they are deceased;
5) half-brothers and half-sisters, or their issue if they are deceased;
6) grandparents;
7) uncles and aunts of the whole blood or their issue if they are deceased;
8) half-uncles and half-aunts, or their issue if they are deceased;
9) Treasury Solicitor on behalf of the Crown.
10) A creditor (someone who was owed money by the deceased) is entitled to apply for a grant (if all others are cleared off)

Question 16

If someone wants to apply for a grant on intestacy under r22 Non-Contentious Probate Rules 1987 (NCPR 1987), what must they do if they are further down the order of priority?

Answer 16

They must explain why those higher up the list are not applying. Those higher in the in the list are “cleared off”.

Question 17

How many people can apply for a grant of intestacy?

Answer 17

4 people can apply and be granted administrator status.

If there are minor beneficiaries (under 18 at the date of the intestate’s death) there must normally be at least two administrators (s114(2) Senior Courts Act 1981).

Question 18

Why would there be administration with will annexed?

Answer 18

Administration with will annexed means that a will is available, but it is not valid because:

• there is no executor named in the will at all; or
• the executor has died before obtaining a grant; or
• the executor named does not want to act.

Question 19

Where would you find the order of priority to apply for a grant of administration in statute?

Answer 19

r20 Non-Contentious Probate Rules 1987 (NCPR 1987)

Question 20

What is the order of priority for applying for a grant of administration with will annexed under r20 Non-Contentious Probate Rules 1987 (NCPR 1987)?

Answer 20

After the executor named in the will, whose application will be for a grant of probate:

1) trustees of the residuary estate (who are often the same people as the executors);
2) a residuary beneficiary;
3) the PR of a residuary beneficiary;
4) any other legatee, devisee or creditor of the deceased; and
5) a PR of any other legatee, devisee or creditor of the deceased.

Question 21

What are the three types of grant?

Answer 21

Grant of probate
Grant of letters of administration
Grant of letters of administration with will annexed

Question 22

What is a grant of probate?

Answer 22

A grant of probate is issued when a person has left a will naming an executor who proves the will through the probate court.

Question 23

What is a grant of letters of administration?

Answer 23

A grant of letters of administration is issued when a person has not left a will and the person entitled under the rules of intestacy applies to administer the estate.

Question 24

What is a grant of letters of administration with will annexed?

Answer 24

A grant of letters of administration with will annexed is used where a will is being proved but not by the executor named in the will or if no executor has been named. For example, a grant could be taken out by a named beneficiary. So, this type of grant is obtained if there is a will but no executor to administer the estate.

Question 25

What is a grant of administration de bonis non?

Answer 25

Where there has been a previous grant issued but the last surviving personal representation has died without completing the administration of the estate; in this case a grant of administration de bonis non is obtained.

Question 26

What is the significance of the grant when dealing with the sale of property in a probate matter?

Answer 26

The contract should not be drafted until the grant is obtained because it is only at this point that the seller of the property can be identified for insertion into the contract.

Whilst the technical position is that an executor derives their authority from the will, and thus could deal with a property sale prior to the issue of the grant of probate, in practice, the sale is not going to proceed to exchange of contracts until the grant is issued.

Question 27

When do family members usually come to see a solicitor?

Answer 27

After the funeral, unless the will had funeral instructions within it.

Question 28

Which tasks could the family or PRs carry out before seeing a solicitor?

Answer 28

• Registering death
• Arranging the funeral
• Notifying government organisations/banks/building societies of the death
• Locating the will.

Question 29

Where the deceased left a will, who are your clients?

Answer 29

The executors.

Question 30

Identify and explain the five initial steps you should take after accepting instructions in a probate matter.

Answer 30

1) See the executors for an initial interview. Gather all relevant financial information (the will, death certificate, bank statements, insurance, utility bills etc.) and take copies of forms of identification from the executors.

2) Obtain approval of your fees. You can discuss verbally, but the fees must be confirmed in writing, with the client returning a signed ‘terms of business’ letter.

3) Open a file and write to:
- all the relevant asset holders to find out amounts with accrued interest to the date of death
- to more distant relatives (legatees) about the legacy and that it will be paid in due course.

4) Value the estate. Professional valuations may be needed for houses (estate agents), shares (brokers), antiques/jewellery (expert).

5) Organise statutory advertisements under s27 Trustee Act 1925.

Question 31

Why do PRs need to organise statutory advertisements under s27 Trustee Act 1925?

Answer 31

These advertisements are to protect PRs against personal liability if an unknown claimant comes forward later, as the PRs remain personally liable to any unpaid beneficiary or creditor, even if they were unaware of their claim. s27 protects PRs against such liability.

Question 32

How long do people interested as a beneficiary or creditor have to send particulars to the PRs when the estate is advertised as being distributed?

Answer 32

A term stated in the advert, usually minimum two months.

Question 33

Where do PRs give notice on intention to distribute the estate via advertisements?

Answer 33

The PRs will give notice of intention to distribute, requiring any person interested as beneficiary or creditor to send particulars to the PRs within a stated time limit (minimum two months from date of notice). The notice is given by:

(a) advertisement in the London Gazette;

(b) advertisement in a local paper

(c) advertisement in any local or national papers which might be appropriate in the circumstances (e.g. if the deceased had a business in Swansea, it might be best to advertise in the local paper there in case of creditors).

Question 34

What is a caveat?

Answer 34

A caveat temporarily stops the grant from being issued, if a person has a concern about whether someone who applies for grant has the right to do so. This gives the person entering the caveat time to check if there are grounds to oppose an application for a grant.

Question 35

What are the conditions to be granted a caveat?

Answer 35

The applicant must be 18 years or over and have an address in England/Wales and must be able to show that they have one of the following interests in the application:
- an interest – that is, they are entitled to share in the estate; or
- a contrary interest – that is they have a different interest from the applicant for the grant.

Question 36

What is a citation?

Answer 36

A citation is a method to try to advance the estate administration by forcing a party with a right to the grant to act. It is used by potential beneficiaries, who want to administration dealt with in a timely fashion, so they can receive their entitlement.

Question 37

What is an ‘executor’s year’? Is it law?

Answer 37

Generally, personal representatives have the “executor’s year” within which to administer and estate. This is not a binding or legal timeframe but is taken as the generally accepted length of time that it will take to deal with the administration.

Question 38

Identify and explain four steps pre-grant you should take.

Answer 38

1) establish whether or not the deceased left a will;
2) contact all relevant financial institutions (banks etc.) to advise them of the death and obtain values of assets and liabilities; obtain valuations of any house, chattels, etc.;
3) advise beneficiaries of their entitlement; and
4) prepare inheritance tax forms, arrange payment of appropriate tax, and apply for the grant.

Question 39

Identify and explain four steps post-grant you should take.

Answer 39

1) collect in the assets;
2) pay liabilities;
3) prepare estate accounts, setting out details of all sums received and paid out, for beneficiaries to approve; and
4) distribute the estate.

Question 40

When is a grant of probate not required? (6)

Answer 40

• Small payments
• Property held as joint tenants
• Life assurance policies
• Pension schemes
• Life interests in trust property
• Statutory nominations

Question 41

Explain in which circumstances small payments do not need a grant of probate?

Answer 41

If the estate only consists of small sums, these can be paid under Administration of Estates (Small Payments) Act 1965, which allows up to £5,000 to be paid out from banks on production of a death certificate and without a grant.

The payments will be made to the PRs or beneficiaries in respect of:

• money held in the National Savings Bank, National Savings Certificates or Premium Bonds up to £5K;
• money invested in a building society (Building Societies Act 1986) up to £5K; and
• sums payable on the death of a member of a trade union, industrial or provident society or a friendly society.

Question 42

Explain in which circumstances the property of joint tenants does not need a grant of probate?

Answer 42

If the deceased owned property with another as a beneficial joint tenant (e.g. spouses owning a house or a bank account together), it will pass automatically on their death to the surviving joint tenant.

This will not need a grant of probate, but will be taken into account for IHT purposes.

Question 43

What is the difference between where a beneficial joint tenancy and a beneficial tenancy in common goes once one tenant dies?

Answer 43

The joint tenancy goes to the other joint tenant and the tenancy in common passes to the PRs or pass under the will.

Question 44

What is the ‘right of survivorship’?

Answer 44

If the deceased owned property with another as a beneficial joint tenant (e.g. spouses owning a house or a bank account together), it will pass automatically on their death to the surviving joint tenant.

Question 45

Why would the estate for IHT purposes be larger than the estate passing under the grant for probate purposes?

Answer 45

If nominated or joint property has to be added on (which is not passed under the grant), all of it must be taken in account for IHT purposes.

PROBATE: Gross estate for probate - debts and liabilities = net estate for probate

IHT: Gross estate for probate + joint property = Gross estate for IHT purposes
Gross estate for IHT purposes - debts and liabilities (own and shared) - exemptions and reliefs = Net estate for IHT purposes.

Question 46

Explain why some life assurance policies do not need a grant of probate? Give the relevant legislation.

Answer 46

s11 Married Women’s Property Act 1882: Most life assurance policies create an immediate trust in the spouses/children’s favour. This is to ensure that any policy proceeds do not form part of the deceased’s estate for IHT purposes.

Production of the death certificate, and proof of ownership by the trustees to the life company, are then sufficient to obtain the policy proceeds.

Question 47

Explain why some pension schemes do not need a grant of probate?

Answer 47

Pension scheme benefits are not part of the calculation of the estate assets for either probate or IHT purposes.

Production of the death certificate is then sufficient to obtain payment from the trustees.

Question 48

Explain why life interests in trust property do not need a grant of probate?

Answer 48

This is when a trustee has given the deceased an interest in trust assets only for the beneficiary’s (deceased’s) lifetime, meaning once they die, that interest is lost. It does not form part of the estate of the beneficiary when they die.

Question 49

Explain why statutory nominations do not need a grant of probate? What are the requirements for a statutory nomination?

Answer 49

This is where property is nominated from one person to another (independent of any will). The most common is making a statutory nomination to a friendly/industrial/provident society up to a limit of £5,000 each. It still forms part of the estate for IHT purposes, but it isn’t part of the estate for probate purposes.

The payment will be made to the nominee directly on the production of the death certificate.

Question 50

What are the requirements for a statutory nomination?

Answer 50

It must be made in writing, attested to by a witness and made by a person 16 or over. It isn’t revoked by a later will.

Question 51

What are the three forms for IHT for normal estates (tax-paying)?

Answer 51

IHT400 (for non-excepted estates)
IHT421 (the reciept sent to HMRC to be stamped, allows you to apply for a grant)
IHT423 (money sent directly from bank to HMRC)

Question 52

In what circumstances will an IHT205 form be used?

Answer 52

The IHT205 form is used if the estate is not large/complex/tax-paying. You can skip all the stages (IHT400/423/421) and prepare an IHT205 form instead. This can be sent directly to the probate registry, as HMRC won’t be involved (due to there being no tax paid).

Question 53

Identify the five forms/documents you will need to send to the probate registry in order for a grant of probate to be issued. For each one, explain its purpose.

Answer 53

(a) form PA1P; (to establish the applicant’s title to the grant)
(b) the will or any codicils;
(c) any affidavit evidence, (e.g. explaining physical damage to the will - plight and condition: marks, alterations, torn will or burns. Also if will does not have due execution/attestation clause, or if there is a copied will being used)
(d) the registry fee;
(e) the stamped IHT421, or the IHT205.

Question 54

What is an “excepted” and “non-excepted” estate for HMLR purposes? Which forms are used for each type?

Answer 54

An excepted estate is a smaller, simpler estate, where no tax will be paid. Excepted estates use IHT205. Most tax-free estates will be excepted, but is the estate is very large (over £1 mill) or if there are any complicating factions (partial nil-rate band transfer from a predeceasing spouse or valuable assets in a trust overseas), then they will want the full details set out in an IHT400. In those cases, the IHT205 will just be stamped and returned immediately.

Excepted estate: IHT205
Non-excepted estate: IHT400

Question 55

What sort of things/information does Form IHT400 ask for/contain?

Answer 55

• details of deceased and estate (PRs)
• details of which supplementary pages are required
• assets in the estate
• liabilities in the estate
• summary of the estate values and any exemption/reliefs from IHT
• calculation of the tax liability

Question 56

What is the instalment option for the payment of IHT and when will this typically be used?

Answer 56

For some assets – the main example being a house or other land – HMRC recognises that it may be very difficult for PRs to raise the tax relating to that asset before the grant is issued. It is something of a “chicken and egg” problem – the PRs cannot sell the house until they have got the grant, but they cannot get the grant until they have paid the tax. For these assets, HMRC allows the IHT to be paid in instalments, spread over the 10 years following the death, although if the asset is sold, all the outstanding tax will have to be paid off. This method of paying IHT is called the instalment option.

Question 57

What is the requirement for online applications?

Answer 57

Since January 2021 all law firms have been required to make online applications for grants of probate, letters of administration, and letters of administration with the will annexed (Online applications for the issue of a caveat are also possible). IHT documentation (like wills, codicils etc) must still be sent in paper form, to be scanned and uploaded to the relevant matter by the court service.

Question 58

How could a will be revoked?

Answer 58

If the testator enters into marriage or civil partnership without pre-meditating it in the will.

Question 59

What is “intestacy”?

Answer 59

Intestacy occurs when someone dies without leaving a valid will.

Question 60

Which statutory section and Act sets out how a deceased’s estate is to be divided under intestacy? Which piece of legislation amended it?

Answer 60

S46 Administration of Estates Act 1925 (AEA 1925), amended by Inheritance and Trustees’ Powers Act 2014 (ITPA 2014).

Question 61

What is the impact of the s46 AEA 1925 and Inheritance and Trustees’ Powers Act 2014 (ITPA 2014) on intestacy?

Answer 61

The surviving spouse or civil partner may not be entitled to the whole estate, although are given high priority; it depends on what other relatives there are.

Question 62

What is a spouse/civil partner entitled to when there are no children?

Answer 62

If there is a spouse or civil partner, but no children or remoter issue (e.g. grandchildren), then the spouse or civil partner takes the entire estate.

Question 63

What is a spouse/civil partner entitled to when there are children? What are the children entitled to?

Answer 63

If there are children or other issue, the spouse or civil partner takes:
- a statutory legacy of £270,000;
- personal chattels; and
- half of the rest of the estate outright.
The children (or, more correctly, the issue) take the remaining half of the estate.

Question 64

Where do administrators derive their authority? Is it the same as executors?

Answer 64

Administrators derive their authority directly from the grant. Executors derive their authority from the will.

Question 65

Who is entitled to a grant? What is the order given in r22 NCPR 1987?

Answer 65

Anyone who has a beneficial interest in the estate of the intestate. The order is:

(a) spouse
(b) issue(s)
(c) parents
(d) siblings (full blood)
(e) siblings (half blood)
(f) grandparents
(g) uncles and aunts (whole blood)
(h) uncles and aunts (half blood)

Question 66

What is a “partial” intestacy?

Answer 66

Partial intestacy is where a will is made does not effectively dispose of all the assets of the estate. E.g. An example of this would be where a will appoints executors but leaves the entire estate to the testator’s friend. The friend dies before the testator, and the will does not say who should take the estate under those circumstances. The property not disposed of under the will passes under the intestacy rules but the appointment of executors (and any other gifts, such as legacies) are still effective.

Another example would be where there is no residue clause in the will. In the case of a partial intestacy, a grant of letters of administration with the will or a grant of probate will be required, depending on whether or not there is an executor able and willing to act.

Question 67

What is a “statutory trust of land”?

Answer 67

On the death of an intestate all the property of the deceased is made subject to a statutory trust under s33 AEA 1925 (as amended by the Trusts of Land and Appointment of Trustees Act 1996). If the estate contains land, the trust will be called a trust of land. Under the statutory trust all funeral and administration expenses, debts, etc., are paid before the balance is distributed under the statutory order of entitlement.

Question 68

What happens if the spouse/civil partner dies within a month of their partner?

Answer 68

s46(2A) AEA 1925 provides if a spouse/civil partner survives the intestate, but dies before the end of the 28-day period, the spouse/civil partner is treated as if she or he had not survived the intestate.

Question 69

What does per stirpes mean?

Answer 69

Latin for “by branch,” refers to every person down a family tree beginning from another person. E.g. if a child of the intestate dies before the intestate and leaves children, those children take the share which the deceased issue would have taken if they had survived.

Question 70

What happens to the family home on intestacy?

Answer 70

Unless the property was held as joint tenants (where the spouse would automatically inherit), the spouse may not automatically inherit the family home. They can acquire the family home in two ways:

1) s41 AEA 1925 allow the administrations to appropriate (take and transfer in kind) any asset of the deceased in satisfaction for their share of the estate. This can only be used when the value of the family home is less than or equal to the sum the beneficiary was due to inherit.

2) Sch 2 Intestates’ Estates Act 1952 (IEA 1952) allows the spouse to REQUIRE the administrator to appropriate the intestate’s interest in the family home to the spouse in satisfaction of their share of the estate. If the house is worth more than the share due to the spouse/civil partner, they will be required to pay “equality money” to make up the difference.

The value of the house is calculated at the date of the appropriation, not the date of death. This process must have happened within 12 months of the date of the grant of letters of administration, during which the administrators can dispose of the family home only with the written consent of the surviving spouse/civil partner.

Question 71

What is the main duty of a PR under s25 Administration of Estates Act 1925?

Answer 71

The main duty of a PR is to collect and get in the deceased’s real and personal estate with due diligence and then to administer it according to law (s25 Administration of Estates Act 1925 (AEA 1925)).

Question 72

What are the three main pieces of legislation for PRs?

Answer 72

Administration of Estates Act 1925 (AEA 1925)

Trustee Act 1925

Trustees Act 2000

Question 73

What are the relevant sections of the Administration of Estates Act 1925 for PRs’ powers?

Answer 73

Administration of Estates Act 1925 (AEA 1925):

s5 Renouncement
s39 Alienation - full powers to deal with property
s41 Appropriation - take any part of estate to satisfy a legacy
s42 Minors - re property, if vested, power to appoint trustees
s44 Postponement - can go beyond a year
s46 Spouse vs children - 270k, personal chattels and half of rest, children get rest of half.

Question 74

What are the relevant sections of the Trustee Act 1925 for PRs’ powers?

Answer 74

Trustee Act 1925:

s27 Advertisements - statutory advertisements
s31 Maintenance - may pay out income from a gift to a minor (whether vested or contingent)
s32 Advancement - may pay out capital up to the whole amount (whether vested or contingent)

Question 75

What are the relevant sections of the Trustee Act 2000 for PRs’ powers?

Answer 75

Trustees Act 2000:

s1 Duty of Care - to exercise such care and skill as is reasonable
s3 Investment - can invest as if fully entitled
ss11-23 Delegation - may delegate certain specific powers to an agent and give such remuneration as PR thinks is fit
s34 Insurance - same rights as if owner

Question 76

What is alienation?

Answer 76

s39 AEA 1925 allows PRs to mortgage or charge property. Alienation means they dispose of the property. As regards real estate, they have all the functions of trustees conferred on them by Part I Trusts of Land and Appointment of Trustees Act 1996.

Question 77

What is appropriation?

Answer 77

s41 AEA 1925 allows the PRs to appropriate any part of the estate towards satisfaction of any share in the estate, provided that no specific beneficiary is prejudiced. E.g They can appropriate personal chattels to a beneficiary in partial satisfaction of a pecuniary legacy. The asset must be valued at the time of appropriation.

Question 78

What is meant by ‘appointment of trustees of minors’ property’?

Answer 78

s42 AEA 1925 allows PRs to appoint a trust corporation (or 2-4 individuals) to be trustees of a property that a minor is entitled to, in order to obtain a good discharge.

Question 79

What is postponement of distribution?

Answer 79

s44 AEA 1925 provides that PRs are not bound to distribute the estate before the expiry of one year from the death (the executor’s year), so that a beneficiary cannot insist on earlier payment.

Question 80

What does maintenance mean, in relation to the Trustee Act 1925?

Answer 80

s31 Trustee Act 1925 allows that if property left to a minor provides income, that income can be used for the maintenance, education or benefit of the minor.

Question 81

Does it matter whether the minor’s interest is vested or contingent when applying ‘maintenance’ in relation to the Trustee Act 1925?

Answer 81

No, the minor’s interest can be either vested or contingent. Once the beneficiary attains the age of 18, accumulated income is normally added to capital and devolves with it. If, although the minor has attained 18, their interest remains contingent, the discretion to use income for maintenance etc., ceases and the income must be paid to the beneficiary until such time as the contingency is fulfilled or the interest fails.

Question 82

What does advancement mean, in relation to the Trustee Act 1925?

Answer 82

s32 Trustee Act 1925 gives PRs/trustees a discretion to apply capital for the advancement or benefit of a beneficiary (whether or not a minor) who has a vested or contingent interest in capital. Up to the whole of the beneficiary’s vested or presumptive share may be advanced under this power either as cash or property. Any advance made must be brought into account when the beneficiary becomes absolutely entitled. However, if a beneficiary contingently entitled receives an advance but fails to fulfil the contingency (e.g. because they die before attaining the age specified for vesting), the amount advanced is not recoverable from the beneficiary’s estate.

Question 83

What is the approach taken when dealing with a deceased’s business?

Answer 83

Generally, the PR do not have any authority to carry on the deceased’s business. However, as an exception, they may choose to do so for proper realisation of their estate, e.g. to sell it as a living, breathing company. However, this won’t usually go beyond the executor’s year. They can only use assets already in the business unless the will authorises them to use other assets.

Question 84

If a PR decides to keep the deceased’s business going, are they liable for debts incurred in running it?

Answer 84

Yes, though they are entitled to an indemnity from the estate. If they are carrying on the business solely for realisation (to be sold), the indemnity takes priority over the rights of general creditors of the deceased and beneficiaries.

However, if the PRs are acting under an express power (the will says they should carry on), the right of indemnity has priority over the rights of beneficiaries but not of creditors of the deceased, unless the latter have expressly consented to the carrying on of the business.

Question 85

Does a sole PR have the same powers as two or more PRs?

Answer 85

Yes. They may give a valid receipt for the proceeds of sale of land (s27 Law of Property Act 1925). Joint PRs generally have joint and several authority, so that the act of one binds the others and the estate.

However, there are statutory exceptions when dealing with conveyance of land and the transfer of shares. In these cases, the conveyance/transfer will normally require all living PRs (i.e. to whom a grant has been issued) to join in.

Question 86

Does the beneficiary under the will or intestacy rules have any legal or equitable interest in the deceased’s assets?

Answer 86

No, until the administration is complete, the beneficiary (under the will or intestacy rules) has neither a legal nor an equitable interest in the deceased’s assets. The beneficiary does, however, have a chose in action – the right to have the deceased’s estate properly administered.

Question 87

What are the two categories into which remedies become available to a beneficiary if difficulties arise?

Answer 87

1. General administrative actions: An administration action may be commenced by a party affected by the administration of an estate (including the PRs) who wishes to seek the court’s assistance or apply for relief. The claim under CPR Part 64 may be made in respect of estates, trusts and charities. E.g. asking a Judicial Trustee to complete the administration.
2. Personal action against PRs: An administration action may be commenced by a party affected by the administration of an estate (including the PRs) who wishes to seek the court’s assistance or apply for relief. However, under s61 TA 1925, the court may relieve the PR (wholly or partly) from personal liability where it is satisfied that they acted honestly, reasonably and ought fairly to be excused (acted in good faith).

Question 88

What is a devastavit?

Answer 88

A failure by a PR to carry out the duties of their office is a devastavit, for which the PR is personally liable to the beneficiaries or creditors, unless they have acquiesced in, or encouraged, the breach.

Question 89

What is tracing?

Answer 89

A beneficiary (under a will or the intestacy rules) or a creditor may have the right to trace and recover property of the estate (or property representing such property) from the PRs or any other recipient of it, other than a bona fide purchaser for value or person deriving title from such purchaser