Wills and Intestacy - Personal Representatives

Learning Outcomes

By the end of this article, you will be able to explain the distinction between executors and administrators, outline who can be appointed as a personal representative, and identify the key powers and duties of personal representatives under wills and intestacy. You will also be able to discuss their removal or resignation and the implications when no one is able or willing to act.

SQE2 Syllabus

For SQE2, you are required to understand the appointment, powers, and responsibilities of personal representatives in the context of administering estates. In your revision, pay particular attention to:

• The legal status and functions of executors (appointed by will) and administrators (on intestacy or when no executor can act).
• Eligibility and disqualification for acting as a personal representative.
• The process for refusing, renouncing, or reserving a role as personal representative.
• The main statutory powers and duties of personal representatives, including the collection and distribution of the estate.
• Removal, replacement, or appointment of personal representatives if necessary.

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 difference between an executor and an administrator?
2. Who is eligible to act as an executor under a will? Name one person who cannot take out a grant immediately.
3. If the executor named in a valid will refuses to act, who is next entitled to administer the estate?
4. Can a person who is bankrupt act as a personal representative?
5. In what situation is the court required to appoint an administrator rather than an executor?

Introduction

When a person dies, someone must deal with their property and debts—the role of the personal representative. This section explains the different types, how they are appointed, who can be appointed, and the practical steps involved if the person entitled is unable or unwilling to act.

Key Term: personal representative
The individual(s) legally recognised as responsible for administering a deceased person's estate. This includes executors and administrators.

Executors and Administrators: Distinctions

Personal representatives are either executors (appointed by the deceased's will and confirmed by a grant of probate) or administrators (appointed by the court, usually under the rules of intestacy).

Key Term: executor
A person named in a valid will to administer the deceased’s estate.

Key Term: administrator
A person appointed by the court to administer a deceased person’s estate when there is no valid executor or will.

Executors derive authority from the will from the moment of death, but third parties commonly require a grant of probate as proof. Administrators’ authority arises only upon the court’s grant.

Worked Example 1.1

Lorna dies leaving a valid will appointing her friend Emily as executor. Emily is alive but is not willing to accept the role. Who is entitled to administer the estate and how is the right established?

Answer:
If Emily formally renounces her right to act, an administrator will be appointed according to statutory rules. The main residuary beneficiary, or otherwise the person entitled under intestacy rules (if no effective will provision exists), may apply to act as administrator.

Appointment and Eligibility

Anyone capable under law may be named an executor. There is almost no restriction—bankrupts, minors, and those with mental health difficulties can be appointed, but minors and some others cannot take out a grant until they are of age or capacity.

Key Term: grant of representation
The official court document conferring legal authority on a personal representative to act in relation to an estate.

Giving Up or Refusing to Act

An appointed executor is not obliged to accept office. They may:

• Renounce: Formally refuse to act before intermeddling with the estate.
• Reserve Power: Allow another co-executor or representative to act, retaining a right to intervene later if necessary.
• Fail to Act: If not available or refusing, their right lapses and the court may appoint someone entitled under the relevant statutory priority.

Worked Example 1.2

Martin is named as one of three executors in a will. Martin is abroad and cannot be involved immediately. What procedure allows administration of the estate and what are Martin's options?

Answer:
The probate registry may grant probate to the available executors, "reserving power" to Martin, enabling him to act later if required.

Revision Tip

Check carefully who has already intermeddled with the estate, as they cannot renounce and may face personal liability for any loss.

Who Cannot Act Immediately

Some appointees must wait or may face passing over:

• Minors (those under 18): May be named but cannot obtain a grant until adulthood.
• The incapable (lacking mental capacity): Courts will usually pass over or appoint someone to manage the estate on their behalf during incapacity.
• Bankrupts: Can act but may not be able to give good receipt for some classes of assets.
• Corporations/Trustees: Specialist rules (such as banks and trust corporations recognised by the court) apply.

Exam Warning

Do not assume anyone named can always act immediately; check age, capacity, and bankruptcy status.

Administrators: When No Executor Can Act

If there is no valid will or executor (or none is willing and able to act), the court appoints an administrator. Statutory priority sets out who qualifies, generally as follows:

• Surviving spouse or civil partner
• Children or their issue
• Parents
• Siblings
• Further close blood relatives, in a prescribed order

The applicant must "clear off" all persons with higher or equal status (for example, show they are dead, refuse, or are disqualified).

Worked Example 1.3

Shirin dies intestate, survived by her husband and an adult daughter from a previous relationship. The husband declines to act as administrator. Who may apply for administration?

Answer:
The adult daughter, being next in priority and having "cleared off" her father (the prior right-holder), may apply to act as administrator.

Powers and Duties

The core responsibilities of personal representatives are to collect the assets, settle debts, and distribute the estate according to the will or rules of intestacy. These duties exist for all personal representatives, but some duties and powers are enhanced or limited by law.

Key duties include:

• Assembling and safeguarding estate assets.
• Paying debts, funeral and administration expenses.
• Distributing the remaining estate to those entitled.
• Keeping estate accounts and acting in good faith.
• Applying for any necessary grant to establish authority.

Key Term: intermeddling
Any action by a person as if acting as personal representative, such as taking estate property or paying estate bills, before formal appointment.

Worked Example 1.4

Elliot dies leaving a will that names his two friends as executors. Both start collecting debts owed to the estate before the grant is issued. Later, one tries to renounce executorship. Is this possible?

Answer:
No. By having already dealt with the estate (intermeddled), the friend cannot renounce executorship.

Resignation, Removal, and Replacement

An executor or administrator who has not intermeddled may renounce (provided a formal renunciation is lodged). If an executor or administrator is unsuitable or unable to act properly, the court can, upon application, remove or replace them (e.g., for dishonesty or incapacity).

Key Term: passing over
The process by which a person otherwise entitled to act is omitted in favour of another person when deemed necessary by the court.

If no one is able or willing to act as personal representative, or all are disqualified, the court will appoint an administrator in accordance with statutory order, or as a last resort, can appoint a professional or trust corporation.

Liability and the Executor de son tort

Anyone dealing with estate property without authority may become an executor de son tort—liable for any demands that could have been enforced against a lawfully appointed representative. They are personally liable for any estate losses or misappropriated assets.

Key Term: executor de son tort
A person who, without lawful authority, assumes to act as executor and incurs the responsibilities and liabilities of one.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Personal representatives are either executors (appointed by will) or administrators (appointed by the court).
• Executors derive authority from the will upon death; administrators’ authority begins only when the grant is made.
• Most adults of sound mind can be named as executor, but minors and those lacking capacity cannot act immediately.
• Those unwilling to serve can renounce or reserve power, provided they have not intermeddled.
• Administrators are appointed in a strict order of priority, and appropriate evidence must show prior applicants are "cleared off".
• Core duties include collecting estate assets, discharging liabilities, distributing the estate, and maintaining proper accounts.
• Courts will remove or bypass personal representatives if necessary for efficient administration.
• Intermeddling can lead to personal liability as an executor de son tort.

Key Terms and Concepts

• personal representative
• executor
• administrator
• grant of representation
• intermeddling
• passing over
• executor de son tort