Free Law Dissertations - 1. Originally Louise Would Have Been The Executor But As She Is Deceased She
1.
Originally Louise would have been the executor but as she is deceased she is no longer able to carry out her duty. As there is no other available executor of the will, administrators will have to be deduced. To begin, it is critical that the will and subsequent codicil were developed according to formalities outlined in s.9 Wills Act 1837 and amended by s.17 Administration of Justice Act 1982 as this will satisfy the requirements of the law relating to capacity, intention and compliance with the prescribed formalities. The identity of the personal representatives (PR) is determined by law and the issue of a Grant of Letters of Administration. The PR must usually be entitled to inherit some or all of the deceased estate under the intestacy rules which would apply if there had been no legal will available.
Therefore, prima facie it is likely that Jenny, John, Jason and Brendon would be potential candidates for application for PR powers of appointment. Jenny is the most likely candidate as the surviving spouse is first in the order of those entitled to apply. Subsequently it would be possible for Jason to apply, but almost impossible for David to be successful as unmarried same-sex partners do not hold the same significance of a spouse under English Law. Generally the grant is made to the first applicant but, in the event of a dispute between equally entitled administrators, the Registrar of the Probate Registry will decide. When making the application the applicant will have to attach a copy of Neil’s will and if successful will become the administrator.
The successful applicant will have to swear to be true in front of a probate registrar and the amount of inheritance tax will be calculated by the registrar before administration will begin and be due immediately.
As administrator the PR will be under a fiduciary duty to carry out the will and the Trustee Act 1925 will be applicable where appropriate. The PR’s primary function is to wind up the estate and distribute the property, however, there position may remain in existence for the duration of their life even after the payment of Neil’s debts and the distribution of assets, however, beneficiaries are subject to a 12 year limitation period within which litigation proceedings can commence. The PR will hold the deceased’s property both at common law and in equity until the property is transferred to the beneficiaries, therefore, the beneficiaries of the estate have no interest in any particular asset, merely the right to compel whomever is appointed PR to administer the estate properly.
After appointment, prima facie it would be the duty of the PR to recover all of Neil’s assets and to sell the house primarily because no statement has been made in regards to the distribution of the cottage and the individual due to inherit the residuary estate is deceased as well.
