Chapter 2: Personal Representatives Flashcards
What are personal representatives?
ONLY people who can deal with assets of the estate whilst it is being distributed/ wound up.
what happens if someone who is not a PR acts as an executor/ administrator
risk being personally liable for losses incurred by the estate.
which PRs are appoint by will / court?
executors - app by will
administrators - app by court
what happens to appointment of PR if a will is invalid?
appointment of executor is invalid
when is appointment of an executor void?
room for doubt/ unclear or previous spouse/ civil partner
what will happen if a person is being asked to perform duties as a executor in a will?
The court conclude intention for this person to be an executor
what is the exception to a testator naming a specific executor?
professional e.g solicitor / partner in a particular firm
what are the limits on numbers of executors
Appoint at least 1
no limit on a maximum
BUT probate granted to a maximum of 4.
What are the 2 scenarios where an EXECUTOR cannot act?
- refusal to act - citation procedure
- executors die before testator - court appoints administrator
What is a citation procedure and when does it apply?
An interested/ eligible person makes an application for ENTER AN APPEARANCE.
PR does not make an ‘enter of appearance’ = lose rights as an executor.
Taken over by next co-executor or administrator (can apply to court to be administrator)
when is an executors power limited?
if the will appoints an executor to deal with certain property
who can still be an executor?
Under 18
Insolvent
Mental capacity issues
Criminal record
legal personality e.g trust corporation / public trustee (gov department)
what will the court do if someone has mental capacity issues?
court will ask can a person make a decision about management of an estate (MCA 2005) - look at specific circumstances e.g size/ complexity of the estate.
what happens if an executor is a minor?
CANNOT apply for grant of probate (appoint parent/ guardian if they are willing to act)
legal residuary of the estate (person who is left ‘the rest’) - holds property on trust until of age
what is renouncing probate?
REFUSAL to act as an executor
how do you action renouncement?
written and submitted to registry
when is renouncement of probate not granted?
Any steps taken to administer/ act (intermeddling) = right is lost
what is reserving a power to the executor?
executor can avoid administration duties but CONTINUES to be an EXECUTOR
only acts when needed.
what is the condition for reserving power to apply?
must be more than 1 executor
what is an executor de son tort? what are the consequences?
acting as an executor without authority from the will.
personally liable for losses
what are the 2 types of administrators and what rules do they act under?
administrator without a will (full intestacy rules)
administrator with a will
(acts under the testators wishes in the will)
what are the categories in Rule 22(1) NCPR?
Surviving spouse or civil partner
Children - any living children or grandchildren.
Father/ Mother.
Brothers/ sisters of whole blood - any sibling with same parents or if siblings died their children (nieces and nephews).
Brothers/ sisters half blood - any sibling sharing one parent or if dead their children (nieces/ nephews)
Grandparents
Uncles / aunts of whole blood - full brother/ sister of the deceased parents or their children (cousins)
Uncles / aunts of half blood - half brother / sister of deceased parents or their children (cousins)
Treasury solicitor if the Crown claims bona vacantia
what is ‘cleared off’?
Prior right (can act but does not want to AND someone else who can does want to act)
renounce their right or be passed over by the court.
The court requires PROOF that the person with prior right is unable/ willing to act.
When is an ‘administrator with a will’ appointed?
valid will & …
Issue with executor appointment e.g room for doubt/ not clear
Cannot act (died/ mental capacity issue/ citation and failed to appear)
Refusal to act
Former spouse/ civil partner = APPOINTMENT AUTOMATICALLY FAILS.
when does appointment of a PR automatically fail?
Former spouse/ civil partner - divorce completed
what is rule 20 NCPR?
there is a valid will but a problem with executor appointment.
administrator will need to be appointed.
what are the stages of Rule 20 NCPR?
will is valid but for some reason someone cannot act as administrator
- any named executor? (act unless cannot)
- residuary legatee?
NO
administrator appointed
If a will is valid what are the rules of administration?
administer in accordance with the WILL not intestacy rules.
what is a residuary legatee?
holding the estate or part of the estate on trust for another person e.g minor
when does Rule 22(1) apply
when there is no will or the will is formally invalid so an administrator must be appointed
How many administrators can be appointed under Rule 22?
Maximum 4 but general rule is 1
UNLESS minority interest or life interest- must be 2 administrators.
In what circumstances is there ‘no will’
when there is no physical will
when the will is invalid (problem with formality, mental capacity, intention)
