Workshop 4: Administration 1 - pre-grant

Question 1

What is a ‘personal representative (“PR”)?

Answer 1

The person who is permitted by law to administer a deceased’s estate

Question 2

Define administration

What does administration include?

Answer 2

The legal process whereby the distribution of a deceased’s estate is managed, including paying their debts, taxes, estate expenses and beneficiaries

Question 3

What are the different names/terms for having a PR appointed by will and a PR appointed by statute?

Answer 3

1. By will - executor/executrix
2. By statute - administrator/administratrix

Question 4

What is ‘the grant of representation “the grant”’?

Answer 4

The court’s confirmation of the authority for PRs to act in their right to collect the deceased’s assets and distribute the estate

Question 5

Where does the court order come from?

Why is the court order necessary?

Answer 5

It is an order from the high court

The grant is necessary because it establishes the authority of the PRs to act and the validity of the deceased’s will

Question 6

What is the power conferred unto the PR by the grant limited to?

Answer 6

The assets passing under the succession estate (either the will or the intestacy)

Question 7

TRUE OR FALSE

PRs are able to collect and realise assists in succession estate, even without the appropriate grant

Answer 7

False

Question 8

Where does an executor derive authority from and what confirms their authority?

Answer 8

They derive their authority from the deceaseds will from the date of death and the grant confirms their authority

Question 9

Where does an administrator derive their authority from and when does their authority kick in?

Answer 9

Their authority is derived from the grant and their authority kicks in only after the grant is issued

Question 10

Why is it not practical for executors to not administer a deceased’s succession estate without a grant?

Answer 10

Because most asset holders require sight of the grant before paying funds to executors

Question 11

What happens in the circumstance where:

a) there is a will without an executor appointed to act or
b) the deceased died intestate?

Answer 11

A PR will be appointed under the Non-Contentious Probate Rules 1987 (“NCPR”), referred to as an administrator

Question 12

TRUE OR FALSE

The land registry will not require a grant before transferring legal title to land into the name of the PRs

Answer 12

False

Question 13

Can a PR formally transfer the deceased’s assets into their own name before distributing them to beneficiaries?

Answer 13

Yes

Question 14

Who does the legal title to the succession estate lie within?

Answer 14

With PRs by virtue of their appointment

Question 15

When does the role, not necessarily the duties, of a PR end?

Answer 15

When the administration is complete

Question 16

What happens if there are continuing trusts in the administration process?

Answer 16

Property that makes up the trust fund should be transferred to trustees

Question 17

TRUE OR FALSE

PRs should record the date on which estate assets from PRs to the trustees, even if they’re the same person

Answer 17

True

Question 18

Which three circumstances can the PR be a trustee of some or all estate property?

Answer 18

1. Where the will expressly appoints the executors to act as trustees for arising trusts
2. Where there’s an intestacy… PRs generally hold ‘on trust with a power to sell’ (s 33 AEA)
3. Where a statutory trust arises under an intestacy; PRs become trustee on behalf of minor beneficiary (s 46 AEA)

Question 19

TRUE OR FALSE

Many of the statutory powers and duties of a trustee apply to PRs e.g,, s 35(1) Trustee Act 2000 and s 68 Trustee Act 1925

Answer 19

True

Question 20

Which three circumstances may give rise to the involvement of a solicitor in the administration of an estate?

Answer 20

1. They’ve been instructed by PRs for advice on administration
2. They’ve been appointment as executor under the deceased’s will
3. The solicitor has been instructed to act on behalf of a party to a contentious probate matter

Question 21

Who are solicitors instructed by during the administration process?

Who is the solicitors client?

Answer 21

The PR, not the beneficiaries

Question 22

How may the solicitors fees be paid for during the administration process?

Answer 22

Using estate assets

Question 23

Who does the solicitor owe duties to if they are appointed as executor?

Answer 23

Estate creditors and beneficiaries