Workshop 4: Administration 1 - pre-grant Flashcards
**Topic** - Administration: Requirement for a grant & types - Administration: Assets without a grant
What is a ‘personal representative (“PR”)?
The person who is permitted by law to administer a deceased’s estate
Define administration
What does administration include?
The legal process whereby the distribution of a deceased’s estate is managed, including paying their debts, taxes, estate expenses and beneficiaries
What are the different names/terms for having a PR appointed by will and a PR appointed by statute?
- By will - executor/executrix
- By statute - administrator/administratrix
What is ‘the grant of representation “the grant”’?
The court’s confirmation of the authority for PRs to act in their right to collect the deceased’s assets and distribute the estate
Where does the court order come from?
Why is the court order necessary?
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
What is the power conferred unto the PR by the grant limited to?
The assets passing under the succession estate (either the will or the intestacy)
TRUE OR FALSE
PRs are able to collect and realise assists in succession estate, even without the appropriate grant
False
Where does an executor derive authority from and what confirms their authority?
They derive their authority from the deceaseds will from the date of death and the grant confirms their authority
Where does an administrator derive their authority from and when does their authority kick in?
Their authority is derived from the grant and their authority kicks in only after the grant is issued
Why is it not practical for executors to not administer a deceased’s succession estate without a grant?
Because most asset holders require sight of the grant before paying funds to executors
What happens in the circumstance where:
a) there is a will without an executor appointed to act or
b) the deceased died intestate?
A PR will be appointed under the Non-Contentious Probate Rules 1987 (“NCPR”), referred to as an administrator
TRUE OR FALSE
The land registry will not require a grant before transferring legal title to land into the name of the PRs
False
Can a PR formally transfer the deceased’s assets into their own name before distributing them to beneficiaries?
Yes
Who does the legal title to the succession estate lie within?
With PRs by virtue of their appointment
When does the role, not necessarily the duties, of a PR end?
When the administration is complete
What happens if there are continuing trusts in the administration process?
Property that makes up the trust fund should be transferred to trustees
TRUE OR FALSE
PRs should record the date on which estate assets from PRs to the trustees, even if they’re the same person
True
Which three circumstances can the PR be a trustee of some or all estate property?
- Where the will expressly appoints the executors to act as trustees for arising trusts
- Where there’s an intestacy… PRs generally hold ‘on trust with a power to sell’ (s 33 AEA)
- Where a statutory trust arises under an intestacy; PRs become trustee on behalf of minor beneficiary (s 46 AEA)
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
True
Which three circumstances may give rise to the involvement of a solicitor in the administration of an estate?
- They’ve been instructed by PRs for advice on administration
- They’ve been appointment as executor under the deceased’s will
- The solicitor has been instructed to act on behalf of a party to a contentious probate matter
Who are solicitors instructed by during the administration process?
Who is the solicitors client?
The PR, not the beneficiaries
How may the solicitors fees be paid for during the administration process?
Using estate assets
Who does the solicitor owe duties to if they are appointed as executor?
Estate creditors and beneficiaries
What is a ‘grant of representaiton’?
A court order confirming th eauhtority of those named in it to administer the state
What three main types of grants are under the umbrella term of ‘grant’?
- Grand of probate
- Grant of letters of administrations (with will)
- Grant of letters of administration
Can an estate that only has assets that do not require a grant be administered without a grant?
Yes
What does a grant of representation provide proof of?
The PR’s authority to act
Where are grants of probate required?
- The deceased left a valid will
- Will appoints executors
- At least one of the appointed executors is going to act
Who is the grant of probate issued in the name of?
The executors that apply
What is the name of the role a named executor can formally appoint to act on their behalf?
Power of attorney
Can named executors give their right to be executor to someone else?
No
Where are grants of letters of administration (with will) required?
- The deceased left a valid will
- Will doesn’t appoint executors who are willing/able to act
Where are ‘grants of letters of administration’ required?
- Where deceased died intestate
Why may a testator died intestate?
- Didn’t make a will at all
- Had a will they made revoked
- Invalid will made
Will a grant of probate be required even if the will does not dispose of any/all of the deceased’s property?
Yes
What is an example of a grant of probate still being needed where the will does not dispose of any/all of the deceased’s property?
Whole or part of estate is left to a pre-deceased family member by will and no substitution provisions apply
Will a grant of representation be required for assets that fall outside of the succession estate?
No
What are examples of some assets that do not require a grant for PR’s to deal with them, even when they fall within the succession estate?
- Assets distributable under Administration of Estates (Small Payments Act 1965)
- Personal household possessions
- Cash
Who do orders under Administration of Estates (Small Payments Act 1965) permit payments to be made to?
People who appear to be beneficially entitled to the assets without formal proof of title
What kind of assets can payments be made to apparent beneficiaries without formal proof of title under Administration of Estates (Small Payments Act 1965)?
- National savings
- Arrears of salary and wages
- Building society accounts
- Pensions where deceased was member of police, fire authority, air force or army
What is the upper financial limit where a grant is not required when distributing assets under Administration of Estates (Small Payments Act 1965)?
£5k per asset
When is a grant required for distribution of assets per asset under Administration of Estates (Small Payments Act 1965)?
When each asset exceeds £5k - the grant required to establish title to the whole sum, not just the excess of £5k
Are statutory provisions of Administration of Estates (Small Payments Act 1965) required frequently?
Why/why not?
No
Because most banks/financial institutions usually release sums up to £15k without grant required
TRUE OR FALSE
Banks/institutions can request PRs to sign an undertaking to confirm their right to administer as well as giving an indemnity to the bank in the event the payment is made to the wrong person
True
Can a PR dispose of joint owner chattels without consent of the surviving joint owner(s)?
No
They can dispose of chattels without producing formal proof of their authority for deceased’s solely owned chattels, but require consent from joint wonder to effect a sale
What will a PR need to produce for assets passing outside of the succession estate, given a grant is not necessary?
- Death certificate
- Other documentation the asset holder requires
What is mean by ‘assets passing outside of the succession estate’?
Assets that cannot pass by a will or intestacy
Is a grant required for a property owned as joint tenants?
Why/why not?
No - because the house will pass under the survivorship rules
Is a grant required for a property owned as tenants in common?
Why/why not?
Yes - because the consent of the other tenant is required to sell the property and give their share to intended beneficiaries
