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

Question 24

What is a ‘grant of representaiton’?

Answer 24

A court order confirming th eauhtority of those named in it to administer the state

Question 25

What three main types of grants are under the umbrella term of 'grant'?

Answer 25

1. Grand of probate 2. Grant of letters of administrations (with will) 3. Grant of letters of administration

Question 26

Can an estate that only has assets that do not require a grant be administered without a grant?

Answer 26

Yes

Question 27

What does a grant of representation provide proof of?

Answer 27

The PR's authority to act

Question 28

Where are grants of probate required?

Answer 28

- The deceased left a valid will - Will appoints executors - At least one of the appointed executors is going to act

Question 29

Who is the grant of probate issued in the name of?

Answer 29

The executors that apply

Question 30

What is the name of the role a named executor can formally appoint to act on their behalf?

Answer 30

Power of attorney

Question 31

Can named executors give their right to be executor to someone else?

Answer 31

No

Question 32

Where are grants of letters of administration (with will) required?

Answer 32

- The deceased left a valid will - Will doesn't appoint executors who are willing/able to act

Question 33

Where are 'grants of letters of administration' required?

Answer 33

- Where deceased died intestate

Question 34

Why may a testator died intestate?

Answer 34

- Didn't make a will at all - Had a will they made revoked - Invalid will made

Question 35

Will a grant of probate be required even if the will does not dispose of any/all of the deceased's property?

Answer 35

Yes

Question 36

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?

Answer 36

Whole or part of estate is left to a pre-deceased family member by will and no substitution provisions apply

Question 37

Will a grant of representation be required for assets that fall outside of the succession estate?

Answer 37

No

Question 38

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?

Answer 38

- Assets distributable under Administration of Estates (Small Payments Act 1965) - Personal household possessions - Cash

Question 39

Who do orders under Administration of Estates (Small Payments Act 1965) permit payments to be made to?

Answer 39

People who appear to be beneficially entitled to the assets without formal proof of title

Question 40

What kind of assets can payments be made to apparent beneficiaries without formal proof of title under Administration of Estates (Small Payments Act 1965)?

Answer 40

- National savings - Arrears of salary and wages - Building society accounts - Pensions where deceased was member of police, fire authority, air force or army

Question 41

What is the upper financial limit where a grant is not required when distributing assets under Administration of Estates (Small Payments Act 1965)?

Answer 41

£5k per asset

Question 42

When is a grant required for distribution of assets per asset under Administration of Estates (Small Payments Act 1965)?

Answer 42

When each asset exceeds £5k - the grant required to establish title to the whole sum, not just the excess of £5k

Question 43

Are statutory provisions of Administration of Estates (Small Payments Act 1965) required frequently? Why/why not?

Answer 43

No Because most banks/financial institutions usually release sums up to £15k without grant required

Question 44

**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

Answer 44

True

Question 45

Can a PR dispose of joint owner chattels without consent of the surviving joint owner(s)?

Answer 45

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

Question 46

What will a PR need to produce for assets passing outside of the succession estate, given a grant is not necessary?

Answer 46

- Death certificate - Other documentation the asset holder requires

Question 47

What is mean by 'assets passing outside of the succession estate'?

Answer 47

Assets that cannot pass by a will or intestacy

Question 48

Is a grant required for a property owned as joint tenants? Why/why not?

Answer 48

No - because the house will pass under the survivorship rules

Question 49

Is a grant required for a property owned as tenants in common? Why/why not?

Answer 49

Yes - because the consent of the other tenant is required to sell the property and give their share to intended beneficiaries