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Wills and Administration of Estates - Distribution of Estates
- Module
- LPC - Wills
- Institution
- Swansea University (SWAN)
brief overview of the distribution of a deceased persons estate LPC course material
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Wills and Administration of Estates – Distribution and administration of the estatePost grant practice:
• The duties and powers of the personal representatives
• Administering the estate
• Distributing the estate under a valid will or intestacy provisions.
The administration period
The administration of an estate may be divided into five stages:
1. Consideration of the duties and powers available to the personal representatives in carrying
out their task
2. Collecting the deceased’s assets
3. Paying the deceased’s funeral and testamentary expenses and debts
4. Distributing the legacies
5. Completing the administration and distributing the residuary estate.
Duties and powers of the Personal representatives.
There is a difference between executors and administrators. The executors have power without the
grant of representation, it simply proves they have such a power. Whereas administrators obtain
their power from the grant of representation.
The personal representatives will obtain the grant of representation to establish title to the estate.
Once obtained they will need to know what powers and types they have in relation to the
administration of the estate.
The fundamental duty of the personal representatives is to collect and get in the deceased's estate
and then to administer it according to the law. This duty must be performed with due diligence.
Duties:
• Collect in the assets within a reasonable time. Includes money due and other assets
belonging to the deceased which vest in them.
• Personal representatives will be responsible for any loss arising from unreasonable conduct
• Need to produce the grant of representation to person who holds deceased assets in order
to establish entitlement to deal with such assets
• Only applies to property which vests in the personal representatives and not to
property which passes independently of the will.
• Within12 months from the date of death the personal representatives should have realised
any assets
• After this, all debts and liabilities can be paid and the estate distributed.
Other duties are imposed by section 25 Administration estates act 1925.
These duties relate to the preparation of estate accounts.
Section 1 of the trustee act 2000 sets out the duty of care owed by personal representatives.
• They must act with such care and skill as is reasonable.
• Bear in mind any special. Knowledge or experience they have that it is reasonable to expect
them to have.
• Personal representatives may be required. To make apportionments for things like dividends
which are received after death but relate to a period partly before and after the death.
• Liability of personal reps is that once they have accepted office they are responsible to
beneficiaries and creditors for loss resulting from their breach of duty.
, Acts that confer powers:
• AEA 1925
• Trustees act 1925 &2000
• Inheritance and trustees powers act 2014
They apply whether the deceased died testator or intestate.
Professionally drafted wills normally give personal representatives wider powers.
Trustee act 2000
Deals with powers to invest trust property, appoint agents, remuneration of trustees and personal
representatives, and to insure property
The personal representatives have the power to sell, mortgage or lease.
• Enables them to sell or exchange any property, raise money by way of mortgage and
grant/surrender any leases.
• These powers are necessary to enable the personal reps to raise the monies needed
to pay the expenses from administration associated with the estate.
• The personal reps must decide which assets should be sold.
Section 41 AEA
Confers a power to appropriate.
The personal representatives may appropriate any part of the estate towards an estate or legacy
provided no specific beneficiary is prejudiced and the appropriate consents are granted.
They all have a power to accept receipts for a minors property – unless the will prides to a contrary,
a minor cannot give a valid receipt for monies or assets transferred to them in satisfaction of a
legacy. Children act 1989 states that parents and guardians have been able to give receipts to
personal representatives. The will may instead often authorise parents and guardians to give good
receipts.
Personal representatives have wide powers to bring or settle claims made by or against the estate.
Section 19 trustee act 1925 gives personal representatives the power to insure land and other
property.
They also have the power to delegate certain ‘delegable’ functions to an ages the such as a solicitor.
Personal representatives may also reimburse themselves for all expenses properly incurred when
acting on behalf of the estate. If a professional executor or trustee has been appointed a power to
charge should be included in the will.
The power to run the deceased business will depend on whether the deceased was a sole trader or
ran his business by way of a partnership or limited company.
Personal representatives have a power to invest providing the will states such. Most professionally
drafted wills will contain this power.
Power to maintain a minor under section 31 trustee act 1925 provides that where property is held
for a minor beneficiary, the personal representatives can apply for this maintenance, education of
benefit of the minor. It can also be varied by express provision in the will.
Powers to advance capital under section 32 of the trustee act gives personal representatives to apply
capitals that a beneficiary with an interest in capital can have the benefit of their apical entitlement
sooner than under the basic provisions of the trust.
Exercise of the personal representatives powers.
A sole executor has the same powers as 2 or more personal representatives and can give valid
receipt for the sale of land under section 27 law and property act 1925.
Joint personal representatives normally have joint and several authority. The act of one binds the
others.
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