Executors or Administrators - Who Will Administer?

Yeah. Hello and welcome everybody very pleased to welcome you to today's session through data law. This is a buy side session where I'm going to be going through with you somebody issues finding executors or administrators when it comes to probate, who will administer and what are the differences between executors and administrators? So we'll be looking at who administers the estate. Okay? So in terms of probate and the difference is really between the sector and administrator when we would have one or the other and the respective roles in that regard and also consideration as to difference and the steps that have been taken both before and after the grant of representation. So I'm looking at this as Of July 2021. Mhm. So first and foremost and we need to ask ourselves about the process of of probate. Probate is we're dealing with a person's estate after their death. And a lot of this is contained within the non contentious probate rules of 1980 70. N. C P R. S. It's referred to and that has of course the N. C. P. R. Who's have been amended of late particularly with the online probate which I'll speak to you about later on. So when one is dealing with probate we need to think about what the pre grant steps that we need to be taken and what a post grant steps and the pre grant steps is. What are you going to do even before you get your grant a representation And he's a grant even necessary. So let's just put into context, let's say we've got a case where mrs jones comes to see you. Uh she comes to see following on from the recent death of a late husband, mr jones who's passed away. Let's say she comes to see you and yourselves were appointed as the executives in late mister jones. His will. So he appointed yourselves to more partners of directors in your firm to be the executives. So like say, uh his wife comes to see you after or even before said the funeral has been dealt with. Now, that's where you can obviously play a Vape a significant role in so far as handling the funeral arrangements. So that could be done. And in terms of payment for that, it would be out of pocket expenses, essentially. It's not something that you would be charging for uh, in that regard, because you haven't formally accepted office at the point at which you are arranging the funeral expenses and the funeral arrangements. Um very, very important to make sure that you can identify the position to will and making sure that then you can begin the process of administration as early as possible. If of course, yourselves were not appointed as uh executors then what you need to figure out is who is appointed in the sector and that's going to depend upon whether there's a will or not. And if there are no executors and that's what we need to look to see who is going to be administrators. Now, the grant is the document that you need to be applying for it, which gives you the authority from appropriate registry to then be able to provide that to the various asset holders, whether it's the bank building society, other asset holders of chatters and so forth to appear to acquire that property and money's with a view to then using that to distribute in that regard. But there will be sometimes situations where you don't even need a grant. So, for example, if the late mr jones passed away, we had had limited amounts of money in a certain bank accounts under what's called the administration of Small payments act of 65 9 65. So you only had certain amounts of money in certain bank accounts, then that would obviate the need for him for you to potentially apply for grant provided that there were no other provision which require a grant. So, for example, if he had a has three, how jointly with his wife is what's called beneficial joint terms in law and equity and underwrite survivorship. That would then go to his wife automatically to the survivorship. Let's say you have a pension and he nominated his wife to benefit and she then benefits sort of pension in that regard. And you could have a situation where grant is not needed in that situation. But in many cases a grant may well be necessary because it doesn't come within any of these exceptions. So what you've then got to figure out is which grant do I apply for? Which grant a representation of my applying for, which then gives me the authority to then be able to acquire the funds from the asset holders with a view to it and distributing going forward. And this is where you then need to figure out whether or not Mr jones died leaving a valid will or not. So if he did die leaving a valid will, which is effective and let's say an example of giving you yourselves were appointed as the executives in the will and the world like say is valid, let's assume on the facts, then you would be applied for grant of probate. But let's say Mr Jones died where he left a valid will, but he either didn't appoint executives or the executives he did appoint have renounced or unable to act for some reason they were under 18. They had power reserved and he didn't make provision for any other executives then even though there's a valid will the executives are unable or unwilling to act in that situation. And that's where you still need to apply for a grant. But you'll be applying for what's called a letters of administration with the willing next as we call It. And shortly I'll be taking you through the 20 of the n. c. p. 1980 seven which gives you a list of categories of persons who can then in that order act as the administrators. And the third situation is let's say let's say Mr jones died, I leave no will at all. So he died intestate. So we made no will at all or the will. He did make his void for some reason let's say it doesn't comply with the formalities. Underworld's act 18 37 for example. He lacked capacity at the point at which that we always executed for example. So the willies avoid avoidable. Let's assume he's died intestate and therefore the persons who will then be applying for the grant of representation are known as executives. Um They will be applying for what's called a grant of administration sometimes referred to as Letters of administration. So there's three different grants and which 11 applies for will depend upon whether this person has died leaving a valid will leaving valid world with or without executors or whether you go administrators as the case may be. So let's then look at the position with the list of priority as administrators. So let's assume then that first and foremost Mr jones died leaving the valid role appointing executives. And of course those executives will then be able to act in those circumstances unless they wish to renounce or otherwise. But if he died leaving a valid will but no executors and no executives who are willing and able to act Then who's going to be done doing the administering for him? Well this is where then you look at Rule 20 of N. C. P. R. So well 20 or the non contentious probate rules of 87. And there's a long list of people who can act as administrators in these circumstances. And you need to go through the list and the order that it is. You can't go further down the list unless You've cleared the person above the list 1st and therefore nobody above the list needs to be. There can be there who is able or willing to act in those circumstances. So the first person you'd look to if you are applying for a grant of letters of administration, with the with the next and under Rule 20 is. You look to see if there was a residue gift in the will. So you look to see who the wrist surgery beneficiaries. And then he looked to see whether or not the residue is held on trust, and if it is, then the first person or persons you would ask are the trustees of the residual beneficiary. So, to give you an example if Mr Jones died and he left his residue to his son. And let's say, his son at the point of Mr Jones's death, his only age, say 10 years of age. And then chances are that residue is going to be held on trust for his son and therefore that will be held in trust by the Trustees. So, whoever those trustees are, those are the first people you would then go to to ask or they Would be the first person who couldn't apply to do the administration Percent 20. Now let's say they don't wish to all the residual beneficiary was such that the rest of the world is not held in trust. Then you would ask. The next person would be any other with surgery beneficiary. So that's where you would then. First and foremost, they look at the trustees of residual beneficiary. But if they were none then he would look at any residual beneficiary. So if the trustees are unwilling to act or there aren't any then you look at the residence after residue was left to say Mr jones's son who is an adult child and who wants to act in those circumstances. Then he would be the first person who can act as the administrator. But let's say he doesn't want to. Let's say that, we said your beneficiary doesn't wish to act or wishes to enhance or otherwise, Then the next person is the prs of when you reset your beneficiary? Okay. So if they said your beneficiary, who's the adult Sundar doesn't wish to act, for example, then you can ask his personal representative. So if he's made a, well, you can ask him to say, well look, can we can we ask your uh your executives, for example, if you made a world to see whether they would do the administration for your grand, for your father, Are you Mr jones? Uh And if the Sun hasn't made a world and you look to see who would be able to do the administration under his intestines. See? So whoever be entitled to ask them or you can go and ask the personal representatives of any person entitled under partial intestine. See, so this is a category here that you would look at okay? But if that doesn't work and that person is unable or unwilling to act and he looked, see if there's any other beneficiary or any creditor. So, for example, if say another beneficiary, say a beneficiary who's got who's got a general gift or a specific legacy specific gift, you asked them whether or not they wish to act. And if not, you can ask any other creditors. So let's say Mr jones died where there's a fair bit of money that was due to certain builders are doing a lot of work for them in the house. Those builders who are creditors, they could then be asked as to whether they wish to do the administering, for example. And if not, finally, then you look at the personal representatives only. Any other beneficiary or any other creator. So you can see, you would go down this list to see who can actually act as administrators. And the important thing here is you can see that the people in this list are not necessarily people that Mr jones would have picked himself. And that's really one of the drawbacks of not making a will because you are then left by having to be reliant on Rule 20 or 22 as I take you through shortly in terms of who will actually be doing your administrating and those people may not be the people that the the disease would have wanted to act for them in terms of doing the administering. So then the other situation like say is where you've got lots of administration and this is a grant, it would apply for where there is total in testis. E so this is where either there's nor will capable of being admitted to probate or uh it's a situation where there was just no well done at all of the world that was done. It's not valid because it may fail like so on the basis of say lack of mental capacity, lack of formalities or the intention was not there as it should be for it to take effect as they will. And the order of entitlement then in the case of total in testis E. Is governed by Rule 22 of N C P. R. So, well 22 of the non contentious Private Rooms of 1987. And uh the order of entitlement is the same you'll find as people who would be entitled to benefit under intestines see? So it be the same category of persons who would be benefiting through intestines see in that regard, uh and therefore there is an order of priority in that regard. So again, you need to look at the first person on the list. And so if they wish to act and if not you can only go further down if you've cleared them off and they don't wish to act are unable to. So therefore just like we have with intestines, the under Sections 46 of the administration of estates like 1925, which gives it a list of persons who benefit under in testis. E it would be the same in so far as the position would sing, Who can act as administrator for the purpose of grant of administration of the rule 22 of em cpr So the first person who would be entitled to act here would be the surviving spouse or surviving civil partner. So if mr jones died, he died in test stage. the first person therefore that connect for him as an administrator to carry out the probate would be his surviving spouse or his surviving husband. So it would be uh surviving spouses, surviving husband of surviving civil partner in that regard. Okay. And if not if they don't wish to act what unable to uh then you would look at his Children and any issue who have really seized at the interstate. So if he's got Children who are adult Children, you would ask them and if more than one he would ask all of them to see if they wish to act. And if any of these adult Children have died leaving their own Children and those issue of the child are now capable of acting, I. E. They are 18 plus and you can ask them as well in that regard. So like say he's surviving spouses, surviving civil partner in the first instance. And then secondly, or in addition to any Children or disease, any issue after the Children of the disease. So you would look to ask them and if not if that's not going to be viable then next year looking at the next category which is basically his parents, so if his parents are still alive, you would ask them to see if they wish to act. So that would be the next category. And if not then you would look at his brother and sisters of the whole blood and their issues. So you would look at his his full blood full sister for brother. And if his full sister has died, for example leaving Her own child who is 18 plus and he is willing or able to act. And you can ask them in that regard. So this is his brother and sister the whole blood and they wish you and if not if they're unable to act or don't wish to act and you're looking at Buzz and sisters and the half blood and they wish you so therefore you're looking at half siblings in that regard who can enact in those circumstances but then you're going further down. So then you're looking at the next category as you're going further down. So then you look see if for example his grandparents, if they are still alive and they can they can act in those circumstances if they so wish if not his uncles and answer the whole blood and they wish you okay? So his uncles and answer the whole blood after hole of the whole blood and their issue. And if not uncles and answer the half blood and their issue as well. Sometimes you get a situation where you've gone all the way down and none of these people are able to act and then you're looking at the treasury spliced on behalf of the crown and if that's not going to be viable, potentially any credit or disease, so you can potentially ask getting credited to see if they wish to. So sometimes as you can imagine your goal all the way down to see if there's any creditor who wishes to then do the administrating. Now as I mentioned earlier, you can't go further down the list until the person above the list has been accounted for, cleared off before you can go further down the list. Okay, so really really important to bears out your mind. Mhm. Now the other point I wish to emphasize is this once we've figured out then whether it's an executive administrator, that one is then going to be instructing to carry this out and that depends upon how the disease died when it died. Leaving a value to an otherwise as we've just seen the next issue Denise in terms of capacity. So we need to be satisfied that whether it's an executor, whether it's an administrator, they must have capacity, mental capacity to carry out the functions of the administrator. And so it's important to bear that in mind, capacity, in terms of mental capacity all sort of going to be 18 or over and making sure that they are in a fit state to be able to act appropriately. In terms of number of persons who act as administrator or executive, you can have just one person, but in practice you'll find it will be two or more people. Sometimes it will be able to act as executors administrators in this situation. And then the other point is about a difference in terms of what an executor can do, which an administrator cannot do before the grant. So one of the advantages of appointing an executor is at least you would then know who is going to be doing the administrating for you uh when you die and therefore administering your uh state for you under your species of the wheel. But secondly, executives are able to do more before they get to grant then what an administrator can do that is an executive kind of, for example, carry out what's called a section 27 Trustee Act of 19 20 to 5 as amended uh advertisements. And what that means is if you've got a situation where you're trying to ascertain whether or not there any, there are any unknown beneficiaries or unknown creditors, then that's where we do these advertisements under trustee acts or that you would put an ad in the local paper and in London. And then London gazette to see if there are any unknown creditors or beneficiaries who may come forward. Now, if you appointed as an executor and therefore you're going for a grant of probate, You can do your section 27 adds even before you apply and obtain your grant. So you can do this process straightaway was if you're an administrator, you cannot do that until you uh you are in fact obtain your grants or there is that a drawback of having to wait longer to carry out that process? And so far as an administrator, secondly, as an executor, you can even enter into a contract to sell property. Uh But you just can't complete until you get to Grant was an administrator. You can't even enter into a contract to sell property until you get your grant. So again you can see as an administrator you are able to carry out more functions before and also as an executor, you are able to play a bigger role in so far as being able to commence proceedings on behalf to dis ease with its proceedings for compensation or otherwise. And also you'll find out because you are appointed as an executor. Sometimes financial institutions will be more willing to correspondent liaise with you given that they know that you were purposely appointed by the executor but by the deceased as opposed to being an administrator. Under the terms of the N. C. P. R. Provisions. Now for somebody to act as an executor administrator, they can do so they can renounce and you can do that simply by writing to appropriate register in state and that they don't wish to act. Which is understandable. But when do you actually accept office? When do you, what's called into medal in the estate as a personal representative, whether you're executor or administrator. And it's where you begin to carry out the process of administrating. So sorting at the funeral, attending to a funeral arrangements. That in itself isn't enough to say that you're accepted offices when you start doing matters beyond that, when you begin the process of collecting in assets and collecting documentation and beginning to sort out the position with that with the probate in that regard. Now this is where over the last year or so we've had some changes to the non contentious profit rules. We had the amendment rules of 2018 which certainly as of November 2018, started piloting the process of allowing online application of probate by an unrepresented applicant, and also to enable applications for probate to be verified by stamped or truth, as opposed to having to do the old form that we used to do previously. Uh So that was back in november 2019 2018 rather, and then recently as of november 2020 as a result of the covid uh period. And also of course, as a result of the greater move towards digitalization, we've had the non contentious Probate amendment Rules of 2020 that have come into effect And these have introduced an overriding objective to the 87 rules, but these also now provides that subject to a few exceptions. Applications for grant of probate now through solicitors of poet practitioners need to be made through the online procedure. Uh So many of you will have experienced Certainly since November 2020 that a lot more of your programs applications are now being done online and also the provision which allows the use of a witness statement as an alternative to affidavit format in disregard And in terms of the probate applications dislikes, I was introduced during the COVID-19 pandemic. So you've got the new online applications, not a P A one P P a one, a application forms which are now being used to lodge an application to apply for the grant online. So all news or simple pro red applications now need to be found online and you need to have a a a h M C T. S account so that payment can then be made electronically. So just make sure you're keeping up with the changes. There is this useful link here that have set out for you with the h M C T s, which was recently updated last week As as a 6th of July 2021. And it gives you some very useful updated guidance in so far as the online applications for probate. So I have a look at that when you get the opportunity. Okay, so thank you very much indeed for listening. I hope that's been a useful session for you to give you some pointers insofar as a difference between executives and administrators and also the, the differences in so far as what one can do before the grant and the other in those circumstances and looking to see who can actually act as administrators and administrate and executives. Thank you very much indeed for listening and I'll speak to you next time. Thank you. Bye for now.