If there is a will and an executor has been appointed, then the executor deals with the estate. This means that they make sure that the spouse/civil partner is aware of the right to a legal right share and distributes the estate in accordance with the will and the law.
If there is no will, or, if there is a will but there is no executor, an administrator is appointed – usually the next of kin or a solicitor.
In order to get authority to administer the estate a legal document called a Grant of Representation is required of which there are three types. If there is a will, then the executor needs to take out probate. If there is no will, or, if no executor has been appointed or the appointed person cannot act, an administrator may be appointed and they take out a Letter of Administration (or a Letter of Administration with Will Annexed if there is a will).
The duties of the executor and administrator are broadly the same. If the estate is complex, it may be advisable to appoint a solicitor to do the job. They will be paid out of the estate and will usually charge around 3% of the value of the estate (or less on very large estates). If matters are fairly straightforward, the executor/administrator may decide to make a personal application.
Taking out probate
Taking out probate basically means having the Probate Office or the appropriate District Probate Registry certify that the will is valid and that all legal, financial and tax matters are in order so that the executor or administrator can be allowed to get on with the job of distributing the estate.
“Proving” the will is the process by which the Probate Office accepts that the will is valid and may be put into effect. The Office may carry out some enquiries, for example, it may ask to see the witnesses to the will but this does not always happen.
Appointing an administrator
If you don’t make a will, an administrator must be appointed. An administrator is also appointed where an executor is not named in the will, dies before the testator or is unwilling or unable to act.
The next of kin may apply for a grant of administration. Priority is given in the following order:
- Spouse or civil partner
- Brother or sister
- More distant relative
If there is doubt about who is entitled to be the administrator, the issue will be decided by the Probate Registrar. Usually, an administrator is required to give an administration bond to the Probate Office – this is a sort of guarantee that you will carry out your duties properly.
Any person may oppose a grant of probate or a letter of administration. If you have an objection, you may lodge a caveat (objection) in the appropriate District Probate Registry or at the Probate Office.
Duties of executor or administrator
Generally, they are obliged to distribute the assets as soon as possible after the death (within a year if possible – they may be sued by the beneficiaries if you do not distribute the estate within a year). This may not be possible if there are legal issues to be decided.
They are under a duty to preserve the assets of the deceased until they are distributed and to protect the assets from devaluation. For example, you should make sure that all assets are properly insured.
They have power to:
- Deal with the estate (for example, to sell it to pay debts or distribute amongst beneficiaries)
- Represent the deceased in legal actions and to settle legal actions against the deceased’s estate
- Gather together and protect all the deceased’s assets such as money, shares and property and find out their combined value
- Call in any outstanding funds due (money owing to the deceased)
- Pay any debts or taxes owed
- Pay the funeral expenses
- Make sure that the spouse (or civil partner) and children know about their legal right share
- Make sure the entitled beneficiaries or next of kin get what they are entitled to, and that ownership of property is passed on correctly.
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