DUTIES OF A PERSONAL REPRESENTATIVE
A personal representative is a person (or can be more than one person) who is legally entitled to administer the estate of a person who has died.
A personal representative must deal with the estate using all relevant statutory powers. They must act with “due diligence” and act only in the interests of the estate and not their own interests. The Administration of Estates Act 1925 [AEA 1925] states that personal representatives must: (1) collect and get in the deceased’s estate and (2) administer it according to the law with due diligence.
A personal representative can be known also as either an ‘executor’ or an ‘administrator’. For example, where the deceased left a Will, the personal representative is usually known as the Executor, and is named in the Will. However, this is not always the case, and some people die without having executed a Will, and if this is the case, the personal representative is known as the Administrator.
The primary duty of a personal representative is to apply for a Grant of Representation. These are collectively known as a Grant of Probate or Letters of Administration depending on whether the deceased left a Will or not. The Grant of Probate is an official document giving the executor authority to administer the deceased’s estate in accordance with the Will. Letters of Administration are issued when a person has not left a will and so the person entitled under the rules of intestacy seeks authority to administer the deceased’s estate. The Grant of Representation is needed for the personal representative to be able to manage the assets, as these assets are frozen when someone dies.
In addition to the Grant of Representation, the personal representative must also ensure all necessary funeral arrangements are made and that the funeral is paid for. If the personal representative is not an immediate family member then funeral arrangements are often made by the family members and the invoice is passed to the personal representative to deal with.
Other core duties of a personal representative include, but are not limited to, establishing the value of the estate’s assets and liabilities, paying any private debts which may be owed by the estate, dealing with any inheritance tax on behalf of the estate and distributing the assets to those entitled to them.
THE REASONS FOR REMOVING AN EXECUTOR OF A WILL
In some cases, an executor can be removed. The reasons for doing so include an executor being convicted of a crime, showing serious misconduct such as theft, creating unreasonable delay in the conduct of the administration, being unable to perform their duties due to physical and/or mental disabilities, and so on. Most of the time this is usually done because they are refusing to act or not performing their executor duties correctly.
If a beneficiary has reasonable grounds, they can apply to the courts to remove or substitute an executor. It should be noted, however, that such an application must be made before obtaining a Grant of Representation. It is advisable however to try to resolve any issues with the executor first without any court intervention.
If a response to the letter is not satisfactory and the executor continues to be a problem, and there is evidence of serious misbehaviour a court application can be made to remove or substitute the executor
Making such an application is not straight forward and can be difficult, as a court will not remove an executor lightly. If the court is satisfied however it has power pursuant to Section 50 of the Administration of Justice Act 1985 [AJA 1985].
If you would like to know more, need assistance with a troublesome executor, or are yourself facing an application as an executor, then call or email our litigation team who would be more than happy to discuss this with you.
