Administration of estates - Sale of assets to pay debts, taxes, and expenses

Learning Outcomes

After reading this article, you will be able to explain the legal rules governing the sale of estate assets to pay debts, taxes, and expenses. You will understand the statutory order of payment, the duties of personal representatives, and the tax implications of asset liquidation. You will be able to apply these principles to SQE1-style scenarios and avoid common pitfalls in estate administration.

SQE1 Syllabus

For SQE1, you are required to understand the administration of estates from a practical viewpoint. This article focuses on the rules and procedures for selling assets to pay debts, taxes, and expenses, and the responsibilities of personal representatives.

  • The statutory order for payment of debts, taxes, and expenses in estate administration
  • The powers and duties of personal representatives when selling estate assets
  • The legal protection for purchasers from personal representatives
  • The interaction between asset liquidation and tax liabilities (Inheritance Tax, Capital Gains Tax, Income Tax)
  • The consequences of failing to follow the correct order or breaching fiduciary duties

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What is the statutory order of application of estate assets to pay debts and legacies?
  2. Can a personal representative sell a specifically bequeathed asset to pay debts if there are insufficient liquid assets?
  3. What legal protection does a purchaser have when buying estate property from a personal representative?
  4. How does the sale of estate assets affect Inheritance Tax and Capital Gains Tax liabilities?

Introduction

When administering an estate, personal representatives (PRs) must ensure that all debts, taxes, and expenses are paid before distributing assets to beneficiaries. This often requires selling estate assets, especially if there is insufficient cash. The law prescribes a strict order for applying assets to settle liabilities, and PRs must exercise their powers with care to avoid personal liability. Understanding the statutory hierarchy, the duties of PRs, and the tax consequences of asset sales is essential for SQE1.

The Statutory Order for Payment of Debts and Expenses

PRs must apply estate assets in a specific order to pay debts, taxes, and expenses. This order is set out in the Administration of Estates Act 1925 and related rules.

Key Term: statutory order of application The legally prescribed sequence in which estate assets must be used to pay debts, taxes, expenses, and legacies before distribution to beneficiaries.

The usual order is:

  1. Property not disposed of by the will (including lapsed or disclaimed gifts)
  2. Residuary estate (after setting aside funds for pecuniary legacies)
  3. Property specifically appropriated for payment of debts
  4. Property charged with payment of debts
  5. Funds set aside for pecuniary legacies
  6. Property specifically bequeathed or devised

PRs must exhaust each category before moving to the next. This ensures fairness and protects the interests of creditors and beneficiaries.

Key Term: pecuniary legacy A gift of a fixed sum of money made by will to a beneficiary.

Powers and Duties of Personal Representatives

PRs have wide powers to sell estate assets to raise funds for debts and taxes, but must act within their legal authority and fiduciary duties.

Key Term: personal representative (PR) The person(s) appointed to administer a deceased person's estate, including executors (named in the will) and administrators (appointed under intestacy).

PRs must:

  • Collect and secure all estate assets
  • Identify and pay all debts, taxes, and expenses
  • Apply the statutory order when selling assets
  • Act in the best interests of the estate and beneficiaries
  • Keep accurate records of all transactions

Key Term: fiduciary duty The obligation to act honestly, with reasonable care, and in the best interests of the estate and its beneficiaries.

Failure to follow the correct order or to act with proper care can result in personal liability for losses.

Legal Protection for Purchasers

A purchaser who acquires estate property from PRs acting within their powers is generally protected from later claims by beneficiaries or creditors.

Key Term: purchaser protection The statutory assurance that a buyer of estate assets from PRs obtains good title, provided the PRs act within their authority.

This protection is essential for the smooth administration of estates and for the confidence of third parties dealing with PRs.

Tax Implications of Selling Estate Assets

The sale of estate assets can trigger tax liabilities that PRs must manage carefully.

Inheritance Tax (IHT)

IHT is charged on the value of the estate at death. PRs must pay IHT before distributing assets. If assets are sold to pay IHT, the proceeds are used for this purpose. Reliefs may apply, such as the nil-rate band and spouse exemption.

Key Term: Inheritance Tax (IHT) A tax on the value of a deceased person's estate, payable before distribution to beneficiaries.

Capital Gains Tax (CGT)

If PRs sell assets that have increased in value since death, a CGT liability may arise on the gain. The acquisition value for CGT is the market value at the date of death.

Key Term: Capital Gains Tax (CGT) A tax on the profit made from selling estate assets that have increased in value since the date of death.

PRs are entitled to an annual CGT exemption for the first two tax years after death.

Income Tax

Income received by the estate during administration (e.g. rent, dividends) is subject to income tax. PRs must file tax returns and pay any tax due before distribution.

Key Term: estate income Income generated by estate assets during the administration period, taxable as income of the estate.

Sale of Specifically Bequeathed Assets

If there is insufficient cash or residue to pay debts and taxes, PRs may have to sell assets specifically bequeathed to beneficiaries. This is only permitted after exhausting prior categories in the statutory order.

Worked Example 1.1

The estate of Mr. Patel consists of £15,000 in a bank account, shares worth £40,000 (bequeathed to his son), and a car worth £10,000 (bequeathed to his daughter). Debts and expenses total £30,000. There is no other property.

Can the PR sell the shares to pay the debts?

Answer: Yes. The PR must first use the bank account. If this is insufficient, the PR may sell the shares (a specifically bequeathed asset) to pay the remaining debts, but only after exhausting the residue and other categories in the statutory order.

Legal Consequences of Breach

If PRs fail to follow the statutory order or act negligently, they may be personally liable for any loss to the estate or beneficiaries. They may also be liable for unpaid taxes or for selling assets without authority.

Exam Warning

If a PR distributes assets to beneficiaries before paying all debts and taxes, they may be personally liable to creditors or HMRC for any shortfall. Always ensure liabilities are settled first.

Practical Considerations and Tips

Revision Tip

Always check for sufficient liquid assets before distributing the estate. If necessary, consult professional advisors on tax and asset sales to avoid errors and liability.

PRs should communicate with beneficiaries about the need to sell assets, especially if it affects specific gifts. Keeping clear records and following the statutory order protects both the estate and the PR.

Key Point Checklist

This article has covered the following key knowledge points:

  • The statutory order for applying estate assets to pay debts, taxes, and expenses must be strictly followed.
  • Personal representatives have wide powers to sell assets but must act within their fiduciary duties.
  • Purchasers from PRs are protected if the PRs act within their authority.
  • The sale of estate assets can trigger Inheritance Tax, Capital Gains Tax, and Income Tax liabilities.
  • PRs may be personally liable for losses if they breach their duties or distribute assets before settling liabilities.

Key Terms and Concepts

  • statutory order of application
  • pecuniary legacy
  • personal representative (PR)
  • fiduciary duty
  • purchaser protection
  • Inheritance Tax (IHT)
  • Capital Gains Tax (CGT)
  • estate income
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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