When someone passes away, their estate will need to be ‘administered’ (dealt with) by their Personal Representative. The person with this responsibility will need to gather in all of the deceased’s assets, pay all the debts of the estate (including any inheritance tax) and then distribute the estate in accordance with the deceased’s Will, or (if there is no valid Will) in accordance with the intestacy rules. That person will need to apply for a Grant of Representation in order to deal with the administration of the estate.
This role will be left to whoever is appointed in the deceased’s Will, or, if there was no Will, whoever is entitled to apply for a Grant (usually the nearest living relative under the Administration of Estate Act 1925.
There are many issues and disputes that can arise from the administration of an estate, such as:
- Applications for the removal of a Personal Representative
- Applications for estate accounts (known as an inventory and account)
- Registering and removing caveats (preventing the application of a Grant)
- Seeking directions from the court regarding the administration of an estate
- Poor or negligent administration of an estate
- Challenging estate accounts / the value of an estate
- Recovering estate assets
- Disputes between beneficiaries
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Applications for the removal of a Personal Representative
When one or more beneficiaries are unhappy with the way in which an estate is being administered, they may seek the removal of a Personal Representative so that someone else may take their place. When agreement cannot be reached then there a number of grounds upon which the court may step in and replace a Personal Representative.
There are some grounds which would automatically allow removal, such as the death of a Personal Representative or an inability to act (e.g. due to medical reasons or living abroad). There are other grounds which will require the court to decide whether their actions mean they should be replaced, such as:
- Disagreement between the Beneficiaries and Personal Representative(s)
- Failing to act in the best interests of the estate
- Being unfit to act (such as being declared bankrupt)
- Breaching their duties to the estate or the beneficiaries
- Mismanagement of estate assets
- Any other reason which calls the Personal Representative’s suitability into question
Applications for estate accounts
One of the duties of a Personal Representative under the Administration of Estates Act 1925 is to “when required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court”.
This means that a Personal Representative should at all times keep an account of the estate assets and liabilities so that they can produce an inventory and account. This is commonly known as estate accounts and are usually produced at the end of the administration of an estate. However, it is open for a beneficiary to apply for information or documentation regarding the estate if they consider they are entitled to this at any time throughout the estate administration.
Registering and removing caveats
A caveat is a written notice given by someone (the caveator) to show that a grant should not be issued in a deceased person’s estate without the caveator being notified.
A person may enter a caveat where they:
- Doubt the validity of a deceased’s Will
- Believe that there may be a valid Will so that the deceased did not die intestate
- Object to a grant issuing to a particular person (for example, because the caveator doubts their ability to administer the estate properly)
- Wish to begin a probate claim
- Wish to begin citation proceedings
A person who disagrees with the placing of a caveat may challenge the caveator by issuing a ‘warning’ to them.
The caveator then has 14 days from the date the warning is served to either:
- respond (known as entering an appearance) to the warning, stating their interest in the estate which conflicts with the interest of the person issuing the warning; or
- issue and serve a summons for directions, if they do not have a contrary interest but wish to oppose a grant being sealed.
If the caveator then enters a warning in time, the effect is that no grant may issue, other than to the caveator, unless a district judge or registrar orders it.
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