Who Should Administer the Estate
WHO SHOULD ADMINISTER THE ESTATE/APPLY FOR PROBATE?
When a person dies the person who administers their estate is known as a Personal Representative.
There are two types of Personal Representative:
Executor – appointed in the will
Administrator – there is no will or no executor named
The 'Wills' page gives information about wills and the validity of them, so you should now know if there are executors named in a will or if you are following the intestacy (no will) provisions.
Personal Representatives responsibilities include:
Determining the assets and liabilities (debts) of the estate
Protecting those assets
Obtaining the grant
Collecting in the assets
Settling any tax liabilities/submitting tax returns
Completing and sending Inheritance Tax accounts for HMRC within 12 months
Distributing the estate in accordance with the will or intestacy provisions
Managing the estate correctly
Executors' power is derived from the will therefore they have powers from the date of death.
Executors can decide if they want to act. If you do not want to act as Executor, you can renounce. Contact us for details of how to do this.
If there is more than one Executor named it may be agreed that only one will act for ease of processing documents, only one signature being required. The other named Executors would need to renounce their powers. Contact us for details on how to do this.
If a bank or firm of solicitors are appointed as Executor, you can ask them to renounce their powers in order that you can choose who deals with the estate yourself, saving potentially huge fees.
EXECUTORS NAMED BUT NOT WILLING TO ACT
If no Executors are willing to act Administrators are appointed to deal with the estate in a similar way to if no will exists BUT there is a different order of priority:
The named Executor
The residuary legatee (the person who inherits ‘everything else’ as stated in the will). If this is more than one person they can both act.
Contact us for advice if neither of these persons is willing or able to act.
THE INTESTACY PROVISIONS
When a person dies without leaving a will or the will is invalid they are said to have died ‘intestate’.
ADMINISTRATORS (NO WILL/ INTESTATE)
Administrators powers are derived from the grant of representation therefore powers are active from issue of grant only.
Prior to this you can collect information but not distribute or act except for organising the funeral and practical arrangements.
Administrators where there is no valid will are determined by law in order of priority:
Surviving spouse or civil partner
Children (or grandchildren where their parent has died)
Father or mother
If you are unsure who should be acting or if none of these apply you should contact us for advice.
THE INTESTACY PROVISIONS -CO-HABITEES/PARTNERS
(NOT MARRIED OR IN A CIVIL PARTNERSHIP)
The intestacy provisions make no provision for co-habitees who are not married or in a civil partnership. If this applies intestacy can make probate contentious immediately. See ‘Contentious Probate’.
If you are a co-habitee and there is no will, contact a solicitor immediately before taking any action in respect of the estate.
Likewise, if you are a family member dealing with an estate of the deceased and they had a co-habitee/partner you should take legal advice from a solicitor.
Co-habitees may be able to make a claim under the ‘Inheritance (Provision for Family and Dependents) Act 1975’.
If all legal beneficiaries are in consent it is possible to make a Deed of Variation to include a co-habitee or step-child. See 'Beneficiaries (Deed of Variation)'
If you are a member of the deceased’s family this may seem an unnecessary step but in order to confirm your validity to act it is an important step.
You can draw it on a piece of paper, just up and down one level and sideways from the deceased.
You should include full names and dates of birth and date of death if applicable.
Personal Representatives are personally liable for any loss incurred as a result of a breach of their duties.
You should contact us for advice at any points you are unsure how to proceed.
If there is any dispute over the validity of a will, or dispute if there is no will, the process becomes what is known as Contentious Probate. If this is likely to occur, you will need to involve a solicitor immediately before you start the process.
If the will may be contested or challenged or have any contentious (disputed) matters eg an expected beneficiary being excluded, you should take legal advice prior to starting the probate process.
Contact us if you have concerns and we can direct you to a local legal advisor.