Probate and Administration - Determining personal representatives (1) Flashcards
Which factors determine who acts as a PR?
Determining Personal Representatives: A number of factors help to determine who acts as personal representative, and whether they will act as executor or administrator.
(1) Application: A party must apply for a grant of representation (court authorisation to act).
(2) Able and Willing: A party must be able and willing to act.
(3) Capacity: A party must be mentally capable to act (unless acting through a power of attorney).
What are executors?
Executors: Executors are named individuals appointed under will, and act under a Grant of Probate. Executors may act for the entire estate even if the will does not dispose of the entire estate.
Number
Number: Only 1 executor is required in any scenario. A maximum of 4 can act at once.
(1) Partial Grant: Grants may be made out to multiple executors over different aspects of the estate, such as a partial grant to a car expert over the testator’s cars, and another partial grant over the rest of the estate.
Minor Executors
Minor Executors: Children cannot act as executors. The effect of appointing a child will differ:
(1) Other Executors: If appointed alongside adult executors, power can be reserved for the child.
Grant of Double Probate: The child can apply for a ‘grant of double probate’ on attaining 18, and act.
(2) Sole Executor: If appointed sole executor, a grant can be made to their parents or guardians as administrators.
Cessate Grant of Probate: The child can apply for a ‘cessate grant of probate’ on attaining 18, and act.
Reservation of Power
Reservation of Power: If there are more than 4 executors, or an executor wishes to delay acting, they may ‘reserve’ power.
Grant of Double Probate: The individual can seek a grant of double probate if a vacancy later arises. This requires permission of court.
Renunciation
Renunciation: Executors may renounce their right to act at any point prior to accepting office. This decision is irreversible, unless sanctioned by the court.
(1) Intermeddling: Executors cannot renounce if they have already intermeddled (meaning shown an intention to accept the role, such as notifying a bank of the death or collecting assets).
(2) Application: Application is made to HMCTS on Form PA15. It must be signed and witnessed, containing a statement confirming that they have not intermeddled.
Effect: This renounces the entire office, and has the effect that they were never appointed.
(3) Trusteeship: Any appointment as trustee under the will must be separately disclaimed.
What are administrators?
Administrators
Administrators: Administrators may apply where there is no will, or where there are no able and willing executors for a will. They act under a Grant of Letters of Administration (Will Attached) or a Grant of (Simple) Letters of Administration (No Will).
Number
Number: 1 administrator is generally sufficient (including over land), and a maximum of 4. This is subject to:
(1) Minor Interests: If there is a minor beneficiary, there must be 2 administrators.
>This is not the case for executors.
(2) Life Interests: If there is a life interest, there must be 2 administrators. >This is not the case for executors.
Minor Administrators
Minor Administrators: Children cannot act as administrators. Their parents can act on their behalf.
Reservation of Power
Reservation of Power: Administrators cannot reserve power.
Renunciation
Renunciation: Administrators may renounce their right to act. This is irreversible (subject to court permission).
(1) Intermeddling: Administrators can renounce even after intermeddling.
(2) Application: Made on Form PA16 to HMCTS, and must be signed and witnessed.
How are administrators determined?
Determining Administrators: Individuals can only apply to act as administrators if they satisfy the non-contentious probate rules (Non-Contentious Probate Rules 1987).
(1) Order of Priority: An applicant must fall within the highest empty tier in the NCPR order of priority, or clear off any person in a higher tier.
(2) Clearing Off: Applicants must clear off any person in a higher category (but not within the same category).
Requirements: Must explain the basis of the entitlement to apply, and the reason for clearing off any higher tier applicant (usually they are disinterested or have renounced).
Exception: Beneficiaries cannot apply if their gift has failed due to the beneficial-witness rule.
Children: The parents of entitled children may apply for a limited grant on the child’s behalf.
(3) Multiple Eligible: Where multiple individuals are eligible, one applicant may apply without notice to others. If multiple apply, those with vested interests are prioritised.
How is an administrator determined under the order of priority if there was a will but there is no executor
(letters with will annexed)?
Priority Under Will: The order of priority to act for an estate with a valid will is found in Rule 20.
(1) Executor: Executor appointed under will (i.e. during partial intestacy).
(2) Trustee of Residuary Estate: Any person appointed to hold the residuary estate on trust.
(3) Residuary Beneficiary: Any person gifted the residue by will, or entitled to the residue in partial intestacy.
(4) PR (Deceased Residuary Beneficiary): The PR of any residuary beneficiary who survived the testator but died pre-grant.
(5) Ordinary Beneficiary or Creditor: Any beneficiary or creditor of the deceased.
(6) PR (Deceased Beneficiary/Creditor): The PR of any beneficiary or creditor who survived the testator but died pre-grant.
How is an administrator determined under the order of priority if there was no will (simple letters of administration)?
Priority Under Intestacy: The order of priority to act for an estate passing on full intestacy is found under Rule 22.
(1) Spouse: A surviving spouse or civil partner (with beneficial interest).
(2) Issue: Children of the deceased and issue of predeceased children (with beneficial interest).
(3) Parents: Parents (with beneficial interest).
(4) Siblings: Siblings (with beneficial interest) and issue of predeceased siblings.
(5) Half-Siblings: Half-siblings (with beneficial interest) and issue of predeceased half-siblings.
(6) Grandparents: Grandparents (with beneficial interest).
(7) Uncles/Aunts: Uncles/Aunts (with beneficial interest) and issue of predeceased uncles/aunts.
(8) Half Uncles/Aunts: Half Uncles/Aunts (with beneficial interest) and issue of predeceased half uncles/aunts.
(9) Treasury Solicitor: The Treasury Solicitor, if claiming bona vacantia.
(10) Creditor of the Deceased, or Any Person Who May Have Beneficial Interest in Event of Accretion: Creditors, and those who may have beneficial interests in event of accretion.
How are PRs removed?
Removal of Personal Representatives
Removal of Personal Representatives: Personal representatives act for life, and can only be removed or replaced by court order on application of PRs or beneficiaries (s50 AJA).
(1) Scope: Required for all removals, including retirements and following breach of duty.
(2) Considerations: The court must consider the welfare of beneficiaries.
