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Authority to Act
Executors are named in the Will or Codicil of a deceased and
the deceased's property vests in them on death. However, it
is the grant of probate which confirms the executor's authority
to deal with the assets of the Estate and so the first step
for the executor is usually to obtain the grant from the probate
registry. An administrator will, broadly speaking, need to
be appointed where a deceased has died intestate (without
a Will) where the deceased died with a Will but did not name
executors, or those named executors are unable or unwilling
to apply for the grant. An administrator will be granted letters
of administration. Until the grant of letters of administration
is obtained, the deceased's property does not vest in the
administrator. The term 'personal representative' (PR) applies
to both executors and administrators and both administer the
estate.
For further information on administering an estate click
here or contact a member of the private
capital service.
Applications for Removal
Once a PR has been appointed, circumstances may arise, such
as complaint by a disgruntled beneficiary about the conduct
of the administration, which may result in an application
to Court for removal of the PR. It is not always necessary
to establish any wrongdoing on the part of the PR for such
an application to succeed. There are essentially a number
of ways by which an application to the court can be made for
the removal of a PR and appointment of a replacement. For
the purposes of this note, we will deal now with the most
common.
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Under section 50 of the Administration of
Justice Act 1985. This is the most flexible option and
consequently the most commonly used. It may also be used
as a means by which a PR retires where both he and the
beneficiaries agree to him being replaced and the procedure
can therefore be consensual. |
Procedure for application under Section 50 of Administration
of Justice Act
Applications are governed by Part 57 of the Civil Procedure
Rules. The applications are assigned to the Chancery Division
and must be brought under the Part 8 procedure and therefore
require witness statement evidence. The application must be
supported by the following:
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A sealed or certified copy of the grant
of probate or letters of administration; |
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A witness statement setting out the grounds
for the application including: |
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i. Particulars of the assets and liabilities
in the estate (including an estimate of capital and income) |
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ii. Details of the persons in possession
of documents relating to the estate |
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iii. The names of the beneficiaries and
details of their interests |
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iv. The name, address and occupation of
any proposed substituted representative. |
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If the application is for substitution of
a PR, is it also necessary to have: |
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i. A signed or sealed consent
to act unless the proposed substitute is the Official
Solicitor, for more information on the Official Solicitor
click here. |
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ii. A witness statement or affidavit as
to the proposed substitute's fitness to act in such a
capacity. |
In making an order, the court can also authorise a substituted
PR to charge remuneration for his/her services. The court
has the power to replace one or all of the PRs and also, where
there are two or more PRs, to terminate the appointment of
one of more, but not all of the PRs. This step can, however,
result in a PR being exonerated from his/her responsibilities
and therefore requires careful consideration of the facts
of a particular case.
This note is intended to provide general information only
and is not intended to be comprehensive nor to provide specific
legal advice and should not be acted upon nor relied upon
by doing so. For further advice, please contact any member
of the trust and fiduciary disputes team.
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