A Will may be written some time before death. It is not unheard of for a named Executor(s) to die before the Testator. If one or more of the Executors dies it may be that the Will names one or more other Executors. It would then be for those Executors named to take up their entitlement to the Grant of Representation to the Will.
If all of the named Executors have died or are unwilling to be appointed, the order of who is entitled has to be established by using the NCPR 1987. It may be that a beneficiary under the Will could become the Personal Representative. It is therefore important if you find yourself in this sort of situation that you seek legal advice on who can apply for the Grant of Representation;
How do I apply for the Grant of Representation?
You can apply for the Grant of Representation if you are a Personal Representative (PR) of the estate. A Personal Representative or PR could be an Executor named in a Will or an Administrator, where there is no Will.
There are two main types of Grant of Representation; the appropriate one will depend on the circumstances of the estate. The two main types of Grant of Representation are as follows;
1) A Grant of Probate (when there is a Will); or
2) Letters of Administration (when no Will exists);
What is an Executor of a Will?
An Executor is usually appointed in a Will and it is their responsibility to deal with the deceased’s assets and liabilities in accordance with the terms of the Will. It is not unusual that an Executor would be a close relative or friend of the deceased.
Duties of an Executor
The first thing the Executor should do is obtain the original Will and establish the assets and liabilities the Estate is composed of.
It is important to inform all relevant parties of the death in order to ensure that any accounts are frozen. This may also help safeguard an Estate against potential fraud.
The Personal Representative needs to ensure that they obtain the correct information and informs all relevant parties as quickly as possible. In most cases once accounts are frozen no monies will be released until either a Grant of Probate or Letters of Administration has been obtained.
The relevant parties could include:-
1. Banks, Building Societies, Insurance Companies, Pension Fund holders;
2. Utility companies, gas, electricity, council tax;
3. Mortgage Companies/Finance Agreements / Debts / Loans etc.
It is extremely important that a PR establishes as quickly as possible whether the Estate is solvent. A solvent Estate is one where the assets are more than enough to pay the liabilities. If an Estate appears to be insolvent i.e. there are not enough funds to pay the bills, it is important that the PR seeks immediate legal advice.
If an estate is solvent then the PR should, once they have obtained the Grant of Representation:-
- Collect in all the assets;
- Deal with all the liabilities. These may include income tax, capital gains tax returns, mortgages, loans, utility bills etc;
- Only after all debts have been paid should a PR even consider paying any of the potential beneficiaries of the Will;
- The PR should ensure they follow the provisions of the Will exactly. If there are any provisions which are not clear the PR may have to seek further legal advice, such as a Barrister’s opinion;
- Inheritance Tax duties – For additional information and relevant forms click here.
See our latest story on inheritance tax changes here.
The information above outlines the duties required of an Executor or Personal Representative. If you have any enquiries relating to a PR’s legal duties or to issues in relation to a Will, Probate matter or Asset Management see more information here.
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