Personal representatives — appointment & powers

WAE.05 — Personal Representatives: Appointment & Powers

Two types of PR

• Executor — appointed by the will. Authority derives from the will itself; the grant of probate merely confirms it. An executor can therefore act (e.g. pay debts, gather assets) from the moment of death, before the grant.
• Administrator — appointed by the court where there is no valid executor (intestacy, or will with no/failed executor appointment). Authority derives from the grant of letters of administration (or administration with will annexed). An administrator has no power before the grant — acts beforehand are void/ineffective.

Who may be appointed

• Executors: chosen by testator; max 4 may take the grant to any one part of the estate (s.114(1) SCA 1981). No minimum age to be named, but a minor cannot act until 18.
• Administrators: order of priority set by NCPR 1987 r.22 (intestacy) and r.20 (will, no proving executor) — generally surviving spouse/civil partner first, then children, etc. Where a life interest or minority interest arises, the grant must (subject to court discretion) issue to a minimum of two administrators or a trust corporation — this minimum-two requirement is statutory under s.114(2) SCA 1981, not the NCPR.

Key statutory powers

• AEA 1925 s.25 (as substituted by AEA 1971 s.9) — duty to collect and get in the estate and administer it according to law, and to provide an inventory/account when required by the court.
• AEA 1925 s.33 — statutory trust on intestacy (a trust for sale as originally enacted; now a trust with a power to sell, post-TLATA 1996).
• AEA 1925 s.39 / TA 2000 — powers to sell, mortgage, lease; wide TA 2000 powers of investment, delegation, insurance, employing agents.
• AEA 1925 s.41 — power to appropriate assets in satisfaction of a beneficiary's entitlement (consent of the beneficiary normally needed).
• TA 1925 s.31 (maintenance) and s.32 (advancement) — s.32 advancement now up to 100% of a beneficiary's share (amended by ITPA 2014, for trusts arising on/after 1 Oct 2014).

Liability & protection

• PRs are personally liable for devastavit (maladministration/loss). Protect by: s.27 Trustee Act 1925 notices (advertise in Gazette + local paper, wait 2 months) against unknown creditors/beneficiaries; Benjamin order for missing beneficiaries.

Common traps

• Executor's authority predates the grant; administrator's does not — classic distinction.
• Number rule: maximum 4 PRs take a grant (s.114(1) SCA 1981); minimum 2 administrators (or trust corporation) where a minority/life interest exists (s.114(2) SCA 1981) — but a sole executor is always fine.
• The chain of representation (s.7 AEA 1925) passes only through executors, not administrators; where it breaks, a grant de bonis non is needed.
• A renouncing executor who has already intermeddled cannot renounce.