U4. Personal Representatives

Question 1

What is a Personal Representative and what is their Primary Role?

Answer 1

They are in chare of the adminstration of the estate , which means they wind up the estate and distubute the assets.

There primary task is to distribute the assets to the right people at the earliest practiable moment..

Question 2

What are the two types of Personal Representatives?

Answer 2

Executors - Who are appointed by the will

Adminstrators - Who are appointed by the Court

Question 3

What do Executors follows to distrubute the estate?

Answer 3

According to the terms of the Will

Question 4

What do Adminstrators follow to distrubte the estate?

Answer 4

Most adminstrators will follow the rules on intestacy, unless they are ‘Adminstrators with the will annexed’ in which the follow the will.

Question 5

What happens if someone who is not a PR attempts to deal with the administration of the estate?

Answer 5

They may be personally liable for any losses incurred by the estae.

Question 6

What does the adminstration of the estate mean?

Answer 6

Winding up the estate and distrubuting the assets.

Question 7

How many Executors are needed?

Answer 7

A minimum of 1 Exectuor.

Question 8

What is the maximum number of Executors allowed?

Answer 8

There is no maximum number, unless it is a probate will, in which the maximum is 4.

Question 9

What 2 things must the will make clear in order to successfully appoint an executor?

Answer 9

1 - The Identity of the executor must leave no room for doubt or it will fail for uncertainty

2 - That they are being asked to perform ALL duties of an executor. However, as long as the will directs some of the essential tasks, the court can conclude that the testator intended that person to be the executor even if there is no express appointment.

Question 11

What is the 1 exception to the rule that a specific person must be clearly identified as an executor?

Answer 11

A Solicitors firm. A testator can appoint ‘A solicitor of x firm’

Question 12

What happens if an Executor fails to adminstrate the estate?

Answer 12

The person who would be first to be appointed as an administrator can apply to the Court for a citation, which would require the Executor to ‘Appear’ - Ie state if they will act as the executor.

If they fail to ‘appear’ ie act as the executor, their rights will stop.

Then, the first person to be appointed as an administrator can apply to the Court to be the administrator.

Citations can only be taken out before the grant of administration has been made.

Question 13

What happens if the executors die before the Testator?

Answer 13

The Court will appoint an Adminstrator.

Question 14

Can a Minor be an Executor?

Answer 14

Yes, but they will not be able to apply for a grant of representation or Probate until over 18.

Question 15

Can someone with a mental illness be appointed as an executor?

Answer 15

Yes, the key question of the Court will be ‘Is that person able to make decisions about the management of the estate?’

Question 16

Can Bankrupt People or People with Criminal Records be Executors?

Answer 16

Yes

Question 16

Can Executors refuse to act?

Answer 16

Yes. Executors can Renounce Probate by filing a written form with the probate registry.

Question 16

When are Executors unable to renounce probate? (Refuse to act as executor)

Answer 16

If they have taken any steps, however small, in administering the estate (known as intermeddling) they will be considered as having agreed to act and will not be able to renounce.

Question 17

What is reserving the power of executor?

Answer 17

Reserving the power of executor means they will not complelty lose their rights as executor, but will not act as an executor unless they are called upon to do so.

This is normally the case where one of the Executors does not want to act, but is happy to act if for whatever reason the other appointed executor can no longer do so.

Question 18

What is an Executor De Son Tort?

Answer 18

This is someone who has not been appointed as an executor, but begins to act as an executor - such as calling in the testators debts, or dealing with the estate.

This is not allowed, and that person will be held personally liable for the assets which they have intermeddled, including paying losses or any charagable inheritance tax.

Question 19

What are the 2 types of administrators and what is the difference?

Answer 19

1. Administrators without a will - Where there is no valid will (Full intestacy)
2. Adminstrators with a will - There is a valid will, but there is an issue with the executorship (partial intestacy)

Question 20

How many adminstrators can be appointed?

Answer 20

Up to 4, although it is usualy only 1.

However, if there is a minority interest ( a child beneficiary) or life interest, there must be at least 2 (s.114 Senior Court Act 1981)

Question 21

Following Rule 22(1), how do the Courts Chose the Adminstrator

Answer 21

Working downwards through a prescribed list (rULE, the first person able will be appointed the administrator:

1. Spouce or Civil Partner (Not including Cohabitants or divorcees)
2. Children (Or their children)
3. Father or Mother
4. Full Blood Siblings (or their children)
5. Half Blood Siblings (Or their Children)
6. Grandparents

7.Full uncles and aunts (or their children)

8. Half Uncles and Aunts (pr their children)
9. The Tresury Solicitor if Bona Vacantia following NCPR R22(2)

Question 22

What is Bona Vacantia?

Answer 22

Where the court appoints the tresury solicitor as the administrator as there is no person able to be the administrator.

Question 23

What happens if the first person to be appointed as administrator is a minor?

Answer 23

There parent or gardian will be appointed until they come of age.

If they refuse, the next on the list will become the administrator.

Question 24

A adminstrator with a will is appointed where there is a will, but there is an issue with the appointment of the executor. What are the 3 reasons there could be a problem with the appointment of the executor?

Answer 24

1. The Will did not name an executor or prescribe executor powers to them.
2. The named executor will not or cannot act (They are dead, lost mental capacity, or too young so their garidan would be appointed)
3. The named executor is a former spouce or civil partner and have since separated.

Question 25

What NCPR Rules govern adminstrators without a will

Answer 25

Rule 22

Question 26

What NCPR Rules govern adminstrators with a will

Answer 26

Rule 20

Question 27

What will Adminstrators without a will deal with the administration of the estate in accordance with?

Answer 27

They will follow the intestacy rules

Question 28

What will the adminstrators with a will deal with the administration of the estate in accordance with?

Answer 28

THE WILL!

Question 29

How long do personal representatives have to adminstrate the estate?

Answer 29

Under s44 Administration of Estates Act 1925 ‘a personal representative is not bound to distribute the estate of the deceased before the expiration of one year from the death’.