The planning, management, and progression of the admin of an estate including claims under the Inheritance (provisions for family and dependants) Act 1975

Question 1

Broadly, PRs duty is to?

Answer 1

collect and get in the real and personal estate of the deceased and administer it according to the law.

Question 2

Duties of a PR before a grant of probate or letters of admin are:

Answer 2

Duty to provide information for IHT purposes.
Duty to dispose of the deceased’s body.

Question 3

Duties of the PR under the grant are set out under?

Answer 3

s.25 of the AEA 1925

Question 4

Once the grant of probate or letters of admin have been obtained the PRs have the following duties:

Answer 4

Duties of the PR under the grant are set out in s.25 of the AEA 1925:
Collect and get in the real and personal estate of the deceased and administer it according to law.
This means in practice –
Identify the deceased’s liabilities and assets.
Obtain payment of any debts due to the deceased.
Gain control of the assets.
Convert those assets into money (where appropriate).
Maintain the assets safely, once collected.
Pay the deceased’s debts.
Ascertain the residuary estate and properly distribute the estate (if assets remain).

Question 5

When required to do so by the court, exhibit on oath in the court…

Answer 5

a full inventory of the estate and when so required render an account of the admin of the estate to the court.

Question 6

When required to do so by the HC, deliver the grant of probate or?

Answer 6

administration to that court.

Question 7

PRs are subject to the same statutory duty of care applicable to?

Answer 7

trustees (s.35(1) TA 2000).

Question 8

When a PR exercises any power listed in schedule 1 to the TA 2000 (unless the will modifies the duty of care) a PR must:

Answer 8

Exercise such care and skill as is reasonable in the circumstances, taking into account any special knowledge or experience that he has or holds himself out as having.
AND if he acts as a trustee in the course of a business or profession, to any special knowledge or experience that is reasonable to expect of a person acting in the course of that kind of business or profession.

Question 9

Beneficiaries or creditors may bring a claim where a PR has?

Answer 9

acted in some way that causes a loss to the estate or where the PR makes an unauthorised profit.

Question 10

Devastavit claims can be founded on:

Answer 10

Misuse of estate assets (e.g., personal use).
Misadmin (e.g., paying out legacies without reserving sufficient sums to pay the deceased’s debts).
Breach of a fiduciary duty (e.g., purchasing a property from the estate even at a fair price without court sanction).
Negligence, whether at common law or for breach of the statutory duty of care (e.g., failure to get in assets or investing without taking advice when it was needed).

Question 11

Where there has been a loss to the estate the PR must?

Answer 11

personally make good that loss.

Question 12

Where the PR made a profit because of their position as PR they must?

Answer 12

personally account for those profits.

Question 13

PR owes a duty to administer the estate to both?

Answer 13

the beneficiaries of the estate and creditors.

Question 14

If a PR fails to pay a beneficiary or creditor, they will…

Answer 14

be personally liable to that person.

Question 15

When collecting in and administrating an estate the PR must consider the following possible claims:

Answer 15

Unknown beneficiaries and creditors
Missing beneficiaries and creditors
Keep back assets should the claimant appear.
Take out insurance to provide funds to pay any claimant.
Apply to the court for a Benjamin order authorising the PR to distribute the estate on the basis the claimant is dead.
Claims against the estate under the Inheritance (provisions for family and dependants) Act 1975

Question 16

Unknown beneficiaries and creditors?

Answer 16

advertise for claimants in accordance with s.27 TA 1925 to protect against a claimant that later appears.

Question 17

Missing beneficiaries and creditors?

Answer 17

if a beneficiary/creditor cannot be traced then the PR should:
Keep back assets should the claimant appear.

Question 18

Claims against the estate under the Inheritance (provisions for family and dependants) Act 1975?

Answer 18

the PR should wait at least 6 months before distributing the assets to protect themselves against such a claim.

Question 19

The PR is under a duty to…

Answer 19

collect in the real and personal estate of the deceased.

Question 20

Ownership will pass to the PR…

Answer 20

immediately on death, or on the grant of administration for administrators.

Question 21

The PRs should collect in:

Answer 21

Personalty
A grant of representation will be required to access bank/building society accounts, insurance, or other investments.
Land

Question 22

Personalty?

Answer 22

taking immediate physical possession of assets such as watches, jewellery, cash, cars etc.

Question 23

Land?

Answer 23

s.1 TLATA 1996 will automatically impose a trust of land with the PRs as trustees with powers to manage the land.

Question 24

The PRs MUST pay off?

Answer 24

all the deceased debts before they distribute any property to the beneficiaries.

Question 25

The PR should identify and pay the deceased’s:

Answer 25

Outstanding debts (secured debts before unsecured debts).
Liabilities, including but not limited to, IHT.
Administration expenses.
Testamentary expenses (incidental to the performance of PR duties).
Reasonable funeral expenses.

Question 26

Following the payment of debts, liabilities, testamentary and funeral expenses, and before distribution of the residuary estate, the PR will need to discharge the following gifts:

Answer 26

Specific legacies.
Pecuniary legacies.

Question 27

Executors cannot ordinarily refuse to pay a legacy if…

Answer 27

payment is demanded by a legatee of full age and there are assets available, but PRs can’t be compelled to pay a legacy before the end of the executor’s year.

Question 28

Executor’s year means (where distribution to beneficiaries is concerned)?

Answer 28

a PR is not bound to distribute the estate of the deceased before the expiration of one year from the death.

Question 29

Following payment of the estate’s funeral expenses, tax, debts, and legacies the PRs will?

Answer 29

distribute the estate according to the terms of the will or rules of intestacy with the transferring of assets to residuary beneficiaries.

Question 30

PRs MUST also take steps to protect against the possibility of later claims from:

Answer 30

Unknown beneficiaries and creditors.
Missing beneficiaries and creditors.
Claims against the estate under the Inheritance (provisions for family and dependants) Act 1975.

Question 31

The PRs should prepare estate accounts for…

Answer 31

final approval and signature by the residuary beneficiaries.

Question 32

The final approval and signature of the residuary beneficiaries releases the PRs from?

Answer 32

further liability to account to the beneficiaries.

Question 33

The Inheritance (Provisions for family and dependants) Act 1975 provides?

Answer 33

spouses,
former spouses,
and children (as well as others)
the right to claim capital or monthly sums from the estate of a person who has died on the ground that the will or intestacy rules did not make reasonable financial provision for them.

Question 34

The Inheritance (Provisions for family and dependants) Act 1975 is based on circumstances where:

Answer 34

The deceased was maintaining the applicant at the date of death
AND they have been left out of the will or not inheriting on intestacy
OR they are dissatisfied with the amount of the inheritance.

Question 35

The Inheritance (Provisions for family and dependants) Act 1975 -
Application for an order must be made?

Answer 35

within 6 months from the date of the grant of representation

Question 36

Persons entitled to apply for financial provision are as follows:

Answer 36

Surviving spouse/civil partner of the deceased.
Former spouses or civil partners who have not remarried or entered into subsequent civil partnership.
Child of the deceased.
Any person (not being a child of the deceased) who in the case of any marriage was treated by the deceased as a child of the family.
Any dependants who was being maintained by the deceased.
Cohabitants during the whole period of 2 years immediately before the date when the deceased died and was living in the same household as husband, wife, or civil partner (though not formalised).

Question 37

Statutory ground for a claim?

Answer 37

disposition of the deceased’s estate effected by his will or the law regarding intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.

Question 38

Court will consider whether reasonable financial provision has been made taking into account general and specific factors (s.3 guidelines) as follows:

Answer 38

Stage 1 – court must consider whether reasonable financial provision has been made for the applicant.
Stage 2 – if the applicant has shown that reasonable financial provision hasn’t been made, the court will proceed to decide what standard of provision to make.

Question 39

Standard of provision for assessing reasonable financial provision is dependent on the claimant:

Answer 39

The surviving spouse standard (spouses, civil partners, and some former spouses and civil partners) – the provision required need not be for the claimant’s maintenance but is based on what is reasonable for the claimant to receive (whether or not it is for that person’s maintenance).
This is the higher, non-maintenance standard of provision.

Question 40

Maintenance standard (any other claimant?

Answer 40

standard is such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.
This is the lower standard of maintenance.

Question 41

Court has the power to make a wide range of orders (taking into account the s.3 guidelines) such as?

Answer 41

the payment of periodical payments, a lump sum payment or the transfer of specific property to the applicant.