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FLK 2 WILLS > Duties and Powers of Personal Representatives > Flashcards

Duties and Powers of Personal Representatives Flashcards

1
Q

PRs are subject to an array of duties imposed on them by statute and common law - what are some of these key duties

A
  • duty to identify and collect assets
  • duty to distribute assets
  • duty to apportion income
  • proof of title to assets
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2
Q

duty to identify and collect assets

A

the PRs must ‘collect and get in the real and personal estate of the deceased and administer it according to law’

demonstrating due diligence in doing so

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3
Q

duty to distribute assets

A

the PRS are under a duty to distribute the deceaseds assets in a way that’s consistent with the terms of the will or with the intestacy rules

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4
Q

duty to apportion income

A

PRs may be required to apportion income between the period before death and the administration period

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5
Q

can the duty to apportion income be excluded by the will

A

yes

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6
Q

proof of title to assets

A

PRs must produce the grant of rep as proof of their title when dealing with the estates assets

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7
Q

when does title devolve on PRs

A
  • either at death, where the deceased died testate or
  • upon the issue of grant, where the deceased died intestate
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8
Q

Are PRs personally liable for any breach of their duty which causes loss to a creditor or beneficiary?

A

yes

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9
Q

what are the main types of breach that PRs will be liable for

A
  • maladministration
  • misappropriation of property
  • negligence
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10
Q

does the court have the power to relieve PRs of liability and if so, whn

A

yes where they have ‘acted honestly and reasonably and ought fairly to be excused for the breach

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11
Q

in order to comply with their duties, PRs are granted a variety of powers - when must they act within these powers

A

at all times

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12
Q

in order to comply with their duties, PRs are granted a variety of powers and they must act within these powers at all times - which two sources are these powers derived form

A
  • statute
  • the deceased’s will
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13
Q

What are the key statutory powers

A
  • power of maintenance
  • power to advance capital
  • power to insure
  • power to appropriate
  • power to invest
  • remuneration for services
  • use of assets to meet deceased’s liabilities
  • statutory order of unsecured debts
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14
Q

can the statutory powers be modified by the will

A

yes

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15
Q

power of maintenance

A

PRs can apply for available income for the maintenance, education or benefit of minor beneficiaries

any income not applied for their maintenance must be reinvested

trustees are free to apply income doe maintenance as they see fit

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16
Q

power to advance capital - for any beneficiary with a vested or contingent interest in the capital, do the PRs have absolute discretion to advance the whole (or any lesser amount) of their entitlement

A

yes - if the PRs believe it’s in the beneficiary’s interest

17
Q

power to advance capital - PRs must obtain the written approval of any life tenant, and if the contingent interest never vests then the advanced capital can’t be recovered - true or false

A

true

18
Q

power to insure - PRs have the authority to…

A

insure any trust property and to pay for the premiums out of the estate’s income or capital

19
Q

power to appropriate - as long as the PRs obtain the necessary consents and no specific legacies are prejudiced, the PRs may apportion estate property towards satisfying any legacies or interest in the estate - true or false

A

true

20
Q

power to invest

A

trustees are afforded a broad discretion to invest trust property - however when selecting investments they’re subject to a duty to act honestly and with reasonable prudence

21
Q

remuneration for services - professional PRs and trustees (such as trust corporations and solicitors appointed in their professional capacity) may claim reasonable remuneration for their services, provided that…

A
  • they are not a sole trustee
  • the co PRs or trustees give written consent
  • no contrary provision about remuneration has been made by the trust instrument
22
Q

use of assts to meet deceaseds liabilities- the powers of the PR vary depending on what

A

whether the estate is solvent

23
Q

use of assets to meet deceaseds liabilities - solvent estate

A

for a solvent estate PRs are allowed to discharge reasonable funeral expenses - other debts must be paid with due diligence

24
Q

use of assets to meets deceaseds liabilties - administrative expenses

A

PRs must determine whether they are expenses properly incurred by themselves as PRs or whether they’re expenses which must be met by legatees

25
Q

is IHT generally treated as part of general testamentary expenses

A

yes

26
Q

statutory order of unsecured debts - the assets of the deceaseds must be used in a specified order to meet the deceaseds financial obligations - what is this order

A
  • property not disposes of by the will
  • property in a residuary gift
  • property specifically given for the payment of debts
  • property charged with the payment of debts
  • pecuniary legacy fund
  • rateable deduction from each specific property gift
  • property under a general power of appointment
27
Q

powers granted expressly by the will - according to the principle of testamentary freedom, the deceased can give the PRs broad powers through the will - what do some of the more common clauses include

A
  • charging clause
  • indemnity clause
  • carrying on a business
  • good receipt of a minor’s legacy
28
Q

charging clause

A

a clause which allows professional PRs (lawyers or accountants) to charge the estate for the work they perform during the administration

29
Q

can people in business who don’t belong to a profession whose members could properly charge for work done in the administration of an estate benefit under a charging clause

A

no

30
Q

indemnity clause

A

the will can indemnify the PRs against any claim by the beneficiaries for losses they have suffered as a result of the PRs mistake

this is usually limited to mistakes made in good faith

31
Q

carrying on a business - can the PRs be granted the power to continue to run the deceased’s business, allowing it to be sold as a going concern (which is especially relevant where the deceased was a sole trader)

A

yes

32
Q

good receipt of a minors legacy - can unmarried minors give good receipt for a legacy

A

no unless the will specifically provides for this

an alternative approach is for the will to provide that a parent or guardian may give a valid receipt.

FLK 2 WILLS (8 decks)

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