WAE 8 - PR role, powers, duties, liability and protections Flashcards
What is the difference between an executor and an administrator?
- Executor: Appointed by will, authority from the will.
- Administrator: Appointed by court (NCPR) if no executor is named/able/willing; authority from the grant.
What does the grant of representation do?
- Confirms PRs’ authority.
- Confirms validity of the will or intestacy.
- Grants legal authority to deal with succession estate only.
When do PRs become trustees?
- A trust is created under the will.
- Holding estate on statutory trust (e.g., intestacy for minors).
- Will acts as the trust instrument.
What are key responsibilities of PRs?
- Collect in estate, pay debts, distribute residue.
- May act as beneficiary.
Fiduciary role – must act honestly, no conflict/profit. - Must administer within reasonable time (Executor’s year = 12 months).
When can solicitors be involved in administration?
- Instructed by PRs (act for PRs, not beneficiaries).
- Appointed as executor.
- Act in contentious probate disputes.
What duties do PRs have before and after grant?
- Before: Dispose of body, submit IHT info (Form IHT400).
- After: Administer estate under AEA 1925 (collect, pay, distribute).
What is the standard of care for PRs?
- Ordinary PRs: Reasonable care.
- Professional PRs: Higher standard under Trustee Act 2000.
What fiduciary duties do PRs owe?
- No conflict of interest.
- No profit, unless authorised (e.g., s29 TA 2000).
- Must act in good faith.
Can PRs sell or lease estate assets?
Yes, under statutory powers.
But all joint PRs must act together unless otherwise stated.
What is appropriation and when can PRs do it?
PRs may transfer an asset instead of cash if:
* Beneficiary consents.
* No prejudice to others.
* Value assessed at transfer date.
What must PRs do when investing estate assets?
- Follow standard investment criteria.
- Take professional advice.
- Review investments regularly.
Can PRs delegate their powers?
Yes, but cannot delegate decisions about:
* Distribution of assets.
* Fees/income/capital split.
* Appointment of trustees/nominees.
When do PRs appoint trustees?
- To hold a minor’s legacy until 18.
- Parent can give receipt unless will says otherwise.
Can PRs run a deceased’s business?
- Yes, but PRs are personally liable for debts.
- Should follow testator’s will and may need express powers.
Can a joint PR act alone?
- Not generally – must act jointly.
- Exception: May act alone for personal possessions.
- Stocks/shares require all PRs.
When are PRs personally liable?
- Breach of duty (e.g., delay, poor investments).
- Devastavit = wasting estate.
- Liability may extend to co-PRs.
What types of breach can PRs commit?
- Maladministration (wrong distributions).
- Misuse of assets (personal use).
- Negligence (delay or bad investments).
- Fiduciary breach (conflict, profit, self-dealing).
How can a PR be removed?
- Court order under s50 AEA.
- Administration action by court.
How can PRs get court protection?
- Apply for court directions (costly).
- Use s48 AJA 1985: act on legal opinion (if no dispute).
What does a s27 Trustee Act 1925 notice do?
- Protects PRs from unknown claims.
- Must publish in London Gazette + local paper.
- Wait 2 months before distributing.
What is a Benjamin Order?
- Court order allowing PRs to distribute estate assuming a missing person has died.
- Requires extensive efforts to find missing person.
- Does not protect other beneficiaries.
When can PRs apply under the Presumption of Death Act 2013?
- If person not seen for 7+ years.
- Court can declare them deceased.
- Often faster than a Benjamin Order.
How can PRs protect themselves?
- Insurance (for missing bens or creditors).
- Indemnity from beneficiaries (may be limited by their solvency).
When can PRs avoid liability under s61 TA 1925?
If the PR:
* Acted honestly and reasonably.
* Ought fairly to be excused.
* Had no chance to get directions earlier.
Can a will limit PR liability?
Yes, but:
* Cannot exclude fraud/dishonesty.
* May vary protections for lay vs professional PRs.
