The position with many estates is straightforward. Where an individual has drafted a Will and has named the people that he or she wants to administer the estate, as long as those people agree to undertake that duty, they would have responsibility. Those people are known as executors.
The situation becomes more complicated when the named executors do not wish to take on the responsibility so there is no one named in the Will to administer the estate. Alternatively, where someone has not left a Will at all which means that it is necessary to look at the different categories of people who are entitled to administer the estate as an administrator.
If there is no Will or willing executor, the duty falls to the person with the best right to Letters of Administration under the Non-Contentious Probate Rules 1987. In cases of intestacy, the order of priority for applying for such grants prioritises the surviving spouse or civil partner, followed by the deceased’s children, parents and siblings, among others.
Where there is an unwilling executor, the next person or persons with priority to apply for probate are the beneficiaries who inherit the bulk of the estate (otherwise known as the residuary beneficiaries).
Where there is a dispute over who should act as executor or administrator the Court may intervene under Section 116 of the Senior Courts Act 1981 to appoint another person if special circumstances make it necessary or expedient.
Although the administration of the deceased’s estate is typically managed by the personal representatives, either executors named in the Will or administrators applying under intestacy rules. However, it may sometimes be someone who is lower in the hierarchy that may wish to take control..
If such a person wants to take control they must apply for the Grant of Representation, providing they have a beneficial interest in the estate and meet the requirements set out in the Non-Contentious Probate Rules 1987 (NCPR 1987) and the Administration of Estates Act 1925..
In situations where disputes arise regarding who should administer the estate, the Court may intervene to appoint an independent administrator. This is particularly relevant when there are concerns about impartiality or potential conflicts of interest among family members. For example, in the case of King v King, the Court highlighted the advantages of appointing a professional administrator to ensure objective management of the estate and to reduce the likelihood of contentious litigation.
Creditors
Creditors, while relatively low down on the list of potential categories of people that can take control of the administration of the estate of the deceased are certainly one of them. The creditor can take control of the deceased’s estate in circumstances when other people who are in one of the higher categories have not done so.
A creditor may apply for a Grant of Letters of Administration if those with prior rights to administer the estate have been “cleared off”. This means that they have either found themselves in a position that they are unable to take on the task, do not want to, or the opportunity has been given to them and they have refused.
Examples of this are if one of those categories of persons has previously died, has renounced the authority to undertake the task, or has been given the opportunity by citation and refused. The details are provided under Rules 20 and 22(3) of the Non-Contentious Probate Rules 1987. The creditor may apply for such a grant to recover their debt even if the debt is statute barred under the Limitation Act 1980.
In cases where the estate is insolvent, a creditor may also petition the Court for an Insolvency Administration Order. This is similar to a Bankruptcy Order for a deceased person and allows the estate to be administered in the same manner as a bankrupt estate. The Court must be satisfied that the estate is insolvent and that the creditor’s debt is valid and unpaid. Once such an Order is made, the estate vests in a trustee for administration. This is similar to the insolvency process.
It is important to note that a creditor’s role in administering the estate is limited to recovering debts and does not grant them a beneficial interest in the estate itself.
If you are facing a dispute please email info@brethertons.co.uk or phone 01295 270999 (Banbury Office), 01869 252161 (Bicester Office), 01788 579579 (Rugby Office) or 01242 472747 (Cheltenham) to speak to a member of our Probate Disputes team who can discuss the next steps with you.