The Personal Representatives Guide

This guide explains what personal representatives do, outlines their duties and obligations and explains how solicitors can help.

Anyone asked to be a personal representative should understand what is involved. If you need information or advice talk to a solicitor as soon as possible. There is no need to worry about your responsibilities and feel you have to shoulder them alone.

WHAT ARE “PERSONAL REPRESENTATIVES”?

Personal representatives (or PRs) are either;

• The people named by someone in a will to act as his/her executors and administer the estate; or
• If no will was left, the next of kin of the deceased are usually appointed to administer the estate. They are known as administrators.

There are usually two PRs, but one can act alone and a maximum of four may act together. Often a friend or relative is chosen to act either alone or jointly with a solicitor.

WHAT DO PRs DO?

It is their job:

• To find out the value of the deceased’s property and possessions (the estate);
• To pay, from the money in the estate, any debts the deceased left unpaid (this may involve selling some items to raise cash);
• To distribute what is left to those entitled to it (the beneficiaries).

HOW LONG DOES THIS TAKE?

The process of winding up an estate can be completed quite quickly – in a matter of months – if the will is clear, if there is not much property involved, and the whereabouts of those entitled to it is known. It can take much longer, sometimes years, if, for example, beneficiaries cannot be traced. It can also take longer if a house has to be sold or there are tax questions to resolve with HMRC. Saving your PRs time, trouble, and expense are all reasons why it is important to leave them a helpful, up to date Will and clear records of your property and beneficiaries details.

DON’T PRs HAVE TO GO TO COURT?

Unless the estate is very small (say under £5000) most PRs will need to obtain what is called a grant of representation from the Probate Registry of the High Court, but this does not mean that they have to appear in court or go in the witness box. Where PRs have the help of a solicitor, the application for the grant can be made by post. PRs would only become involved in a court case or court proceedings if there were a very serious dispute about the estate, and this is rare.

WHAT IS THE GRANT OF REPRESENTATION?

This is a type of court order produced by the Probate Registry which shows to those concerned that money and other items previously belonging to the dead person can safely be handed over to the PRs. To get it, PRs have to fill in a form and promise, by swearing an oath, that they will administer the estate properly.

A fee is payable (from the money in the estate) to the Probate Registry. Where PRs have the help of a solicitor, all the paperwork will be taken care of by the firm.

WHAT IS MEANT BY “GETTING PROBATE”?

Literally, probate means “proof” that a will is valid. Strictly speaking, the term probate only applies where the deceased left a will, but (despite the fact that most people actually die without leaving a will) the term has come to be used to refer to all estates.

The grant an executor gets is called the grant of probate, and an administrator’s grant is called letters of administration. Both grants have broadly the same purpose and effect.

IS THERE A DIFFERENCE BETWEEN TRUSTEE AND PRs?

Trustees hold money or property for people (children for example) and many of the legal requirements on trustees apply to PRs. PRs’ position is slightly different, though as they are only in charge of someone’s estate for a particular purpose – primarily, to pay the deceased’s debts and hand the remainder over to the beneficiaries. PRs may become trustees after the administration of an estate has been completed if, for example, the beneficiaries are still children.

MUST PRs ACT IF THEY HAVE BEEN APPOINTED IN A WILL OR IF THEY ARE NEXT OF KIN?

No, they always have the choice. Choosing not to act as executor is called renouncing, and an administrator who does not want to act is passed over.

WHAT IF SOMEONE WANTS TO STOP BEING A PR?

Once administering an estate has begun, a PR cannot drop out if, for example he or she has a change of mind, or if things turn out to be more difficult than expected, but a PR can apply to retire for a good reason, such as ill health. It is important to know in advance what is a PR involves. Always ask a solicitor if advice is needed.

WILL IT COST ME ANYTHING TO ACT AS A PR?

All PRs are entitled to get a solicitor’s help and to have the bills related to the administration of the estate paid from the money in the estate. Solicitors’ bills must be fair and reasonable having regard to all the circumstances and can be checked.

Of course, if you get personal advice from the solicitor for example, about investing what you have inherited – you will have to pay for this yourself in an ordinary way.

IT ALL SOUNDS LIKE A HEAVY RESPONSIBILITY…

It is. The law takes the subject of acting as a PR (or trustee) very seriously, so much so that there are several Acts of Parliament and many other legal requirements dealing with their rights, duties and obligations. It is not difficult to see why, since PRs and trustees may have control over large sums of other people’s money. However, many of these rules and regulations are designed to ensure that beneficiaries can get compensation if the PR turns out to be dishonest or careless; the normal honest and conscientious PR would regard them as common sense, and highly desirable in the interests of the beneficiaries.

It is usually helpful to PRs to have a solicitor’s assistance in the administration of an estate, to advise on legal points, as well as practicalities.

WHAT OTHER HELP IS AVAILABLE TO PRs?

As well as a solicitor’s help, PRs should take other specialist advice (such as a stockbroker’s) when they do not have the necessary expertise themselves. This is also paid for from the money in the estate.

In some cases, they are entitled to safeguard themselves against complaints or claims from beneficiaries. Solicitors will advise about when this is possible.

WHAT ARE THE MAIN DUTIES AND OBLIGATIONS ON PRs?

These could be summed up by saying that:

• PRs are expected to put the interests of the beneficiaries before their own interests, and
• Always to act in the interests of the estate, rather than themselves.

In addition, they must not make a profit from their position unless authorised and they must scrupulously account to the beneficiaries for all the money passing through their hands. Their task should be carried out as the law says, “with due diligence” and PRs should act reasonably and prudently in relation to the estate property. PRs who act wrongly may have to pay compensation to beneficiaries out of their own money.

CAN PRs BE BENEFICIARIES TOO?

It is quite possible that you will be both a PR and a beneficiary. For example, a woman can appoint her husband as her executor and leave everything to him and vice versa.

ARE THERE ANY PROBLEMS FOR PRS WHO ARE BENEFICIARIES TOO?

There are no worrying problems, but these PRs should always bear in mind their dual role. Their main role is as PR. As PR, they must act in the interest of the estate, and must not put their own interests first. Solicitors will always advise if there is any difficulty to be resolved.

WHAT INFORMATION WILL I NEED?

You should be able to find most of the details you need at the beginning from sorting through the deceased’s papers. The solicitor can sort these papers for you, but it will probably save time and expense if you go through everything yourself. Your solicitor will want to have things like bills- gas and electricity accounts, for example, and any other unpaid bills; rent books, pension books, credit cards, etc.; income or other tax demands, welfare benefit details, share certificates, cheque books, bank statements, passbooks – in short, all the documents that will help establish how much will be left for the beneficiaries, once the bills have been paid.

Do discuss with your solicitor whether you need help with arranging the funeral, or with practical matters such as ensuring the estate property – perhaps the deceased’s house or car – is secure and fully insured.

WHAT IS A PR’S FIRST STEP?

Consult a solicitor about the estate to find out what has to be done. The solicitor who prepared the Will will usually be pleased to help.

ACTING AS A PR

Acting as a PR is an important obligation, but a close friend or family member either alone or with a solicitor is often the right choice. Knowing who will act gives the maker of the will peace of mind and the knowledge that his or her affairs will be dealt with by responsible and caring people of his/her choice. From a personal point of view, making your own PRs’ task as straightforward as possible is something to consider – help them by asking your solicitor to draw up your own Will, or review it with you, to see that your wishes are put into effect, economically and efficiently.