WAE - Administration Flashcards
Estate administration
The process of collecting in the deceased’s assets, paying debts and liabilities and distributing the remaining assets in accordance with the deceased’s will or the intestacy rules.
The grant of representation
a court order conferring authority on the PRs to carry out the administration.
Does a life policy require a grant of representation?
Yes, if the proceeds are payable to the estate, the life policy forms part of the succession estate.
The PRs will need to obtain a grant of representation to collect it.
When does the chain of representation apply?
The chain of representation only applies where a sole surviving executor, who has taken out a grant of probate, dies before administering the estate and appoints their own executor in turn.
Your client has died intestate and is survived by their spouse and two children, one aged 20 and the other aged 15. The deceased’s spouse and children are all entitled to inherit from the estate under the intestacy rules. What is correct in relation to the administration of the estate?
The testator’s spouse cannot act as sole administrator because one of the two children is a minor.
A deceased died leaving a valid will that appoints their adult brother as executor. The deceased’s will leaves a cash lump sum to the deceased’s two adult children and the residue of the estate to their spouse.
The deceased is survived by their spouse and children. The deceased’s brother has pre-deceased.
There are no trustees of the residuary estate.
Who should apply for the grant of representation?
The deceased’s spouse under NCPR 20 because they are the residuary beneficiary.
A man died intestate. The man never married or entered a civil partnership.
He has two sons (20 and 18) and a daughter (15) from a long-term relationship with a woman.
The children are the only beneficiaries of the man’s estate under his intestacy.
Who may apply for a grant?
Both sons and the woman (on behalf of the daughter) although applications made by the sons will be preferred over the woman’s.
The court will prefer an application by an adult in their own capacity (i.e. the sons) over an application made on behalf of a minor.
When is an executor appointed under the will unable to act?
They:
- Pre-deceased the testator, or survived the testator but died before taking out the grant
- Are a minor
- Lack capacity
- Are the testator’s former spouse/civil partner and the divorce/dissolution took place after the will was made (s.18A/C Wills Act 1837) unless the will expressly states otherwise
What is loss relief?
It entitles the PRs to claim a partial refund of IHT where losses occur on the sale of certain assets within prescribed time frames
When is a grant of probate required?
Estates where the deceased left a valid will which appoints executors who are going to act. The grant will name the executors who are appoonted
When is a grant of letters of administration (with will) required?
Estates where the deceased left a valid will but no executors are appointed or those appointed are unwilling or unable to act. The grant will name the administrators.
When is a grant of letters of administration required?
Estates where hte deceased did not leave. a valid will (i.e. died intestate). The grant will name the administrators
what must an applicant under NCPR 22 will always need to do when applying for a grant?
Confirm their familiar relationship with the deceased and their beneficial entitlement to the estate
An executor takes out a grant of probate and then decides to appoint an attorney to assist with the administration.
Will the power of attorney be sent to the probate registry?
No.
The executor has already taken out the grant in their own name. The probate registry would only be sent the power of attorney if the grant was being issued in the name of the attorney i.e. the executor was delegating their right to apply.
What is an affidavit
A formal written statement of fact which a person signs under oath
When is an affidavit required?
There is a valid will but there is something about the document which renders its validity or interpretation uncertain
Can a minor apply for a grant of probate
No
A man died recently. His valid will, made five years ago, appointed his wife as his sole executrix and left his residuary estate to her, but with a substitutional gift, should she pre-decease him, to such of his children as survive him and if more than one, in equal shares. The will also left a house to his brother. The man divorced his wife eight months ago, but did not change his will. The man is survived by his brother, former wife and their son, aged 20. He is also survived by a daughter, aged 18 months, who was born as a result of his relationship with a work colleague, who also survives him.
The son together with the work colleague who is the mother of the daughter.
Following the divorce the appointment of the wife as executrix fails, as does the gift of residue to her and instead it passes to the 2 children. Two administrators with the will are required (as there is a minor beneficiary). Residuary beneficiaries have the prior right to act under NCPR rule 20 which means the son and the daughter (whose mother acts on her behalf, taking a grant for her daughter’s use and benefit, as she cannot take the grant herself as a minor).
Residuary beneficiary (or their rep - the mother) has a. better right to take the grant than a non-residuary beneficiary - the brother
A testatrix died six months ago. In her valid will she left nothing to the man with whom she had been living with for the last year of her life, but she appointed him as her sole executor. So far, the only action that the executor has taken with regard to the estate is to sell some of the testatrix’s chattels. He has taken no steps at all towards obtaining the grant. The testatrix’s adult daughter is residuary beneficiary under the terms of the will. The daughter wishes to receive her entitlement as soon as possible. However, she believes that the executor is determined to thwart the administration of the estate because he feels aggrieved by the fact that he does not benefit under the will.
Apply to the court for an order passing over the executor.
Who can apply for a Grant of Probate?
Only an executor appointed in a will by the testator!
Your client will be appointed as the PR of an estate. Your client has not yet made an application for a grant.
Which of the following most accurately describes the current statutory duties of your client?
A duty to report to HMRC about the estate assets and liabilities and pay any inheritance tax due.
You are advising a client who has been appointed as the sole executor of his father’s estate. The executor has just obtained the grant of probate and does not act in a professional capacity.
The executor has asked whether he must complete the administration of the estate now he has started and whether he may buy one of the properties from the estate.
There are no relevant express provisions in the will.
The executor has a duty to administer the estate. The executor has the power as PR to sell estate assets. If he acted as the purchaser he would be in breach of his fiduciary duty, even if a fair price was paid (unless consent of the court or beneficiaries was obtained).
Is the following statement true or false?
“If an estate has not been fully administered 12 months after the deceased’s death the PRs will be in breach of their duty under s.44 Administration of Estates Act 1925?”
False - a PR is not obliged to distribute the estate before the one-year anniversary of death, although after this period they must be able to justify any delay.
When should PRs begin to pay the deceased’s outstanding debts and funeral expenses?
As soon as assets can be collected.
