Wills and Intestacy - Personal Representatives

Learning Outcomes

This article outlines the role, appointment, powers, and liabilities of personal representatives in wills and intestacy, including:

• The legal status and authority of executors (from death) and administrators (on grant), and the limits of relation back
• Who may validly be appointed and who may take a grant, including issues of identification, age, capacity, bankruptcy, and divorced spouses
• How and when personal representatives may renounce, reserve power, or be cited to accept or refuse a grant
• Priority for grants on intestacy and with will annexed, and the requirement to “clear off” prior or equal claimants
• Core fiduciary duties, the statutory duty of care, and principal administrative powers (sale, appropriation, insurance, delegation, investment)
• Consequences of intermeddling, executor de son tort liability, and devastavit for mismanagement or wrongful distribution
• Court powers to pass over, remove, or substitute personal representatives, and circumstances in which guarantees may be required
• Number limits and minimum appointments where minors or life interests exist, and the preference for trust corporations in suitable cases
• Practical protections during administration, including Trustee Act 1925 s27 notices, prudent timing of distribution, and handling insolvent estates
• What happens if no one is able or willing to act, including appointment of an administrator of last resort

SQE2 Syllabus

For SQE2, you are required to understand the appointment, powers, and responsibilities of personal representatives in the context of administering estates, with a focus on the following syllabus points:

• The legal status and functions of executors (appointed by will) and administrators (on intestacy or when no executor can act).
• Eligibility and disqualification for acting as a personal representative (age, capacity, bankruptcy, corporations/trust corporations).
• The process for refusing, renouncing, reserving power, or being cited to accept or refuse a grant.
• The main statutory powers and duties of personal representatives, including collection and distribution of the estate and the duty of care.
• Priority for grants of administration (including with will annexed) and the requirement to “clear off” prior claimants.
• Court powers to pass over (Senior Courts Act 1981 s116) and to substitute or remove personal representatives (Administration of Justice Act 1985 s50).
• The limit on the number of personal representatives and minimum numbers where minors or life interests are involved (Senior Courts Act 1981 s114).
• Liability for devastavit, executor de son tort, and the protections available to personal representatives (including Trustee Act 1925 s27 notices).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the difference between an executor and an administrator?
2. Who is eligible to act as an executor under a will? Name one person who cannot take out a grant immediately.
3. If the executor named in a valid will refuses to act, who is next entitled to administer the estate?
4. Can a person who is bankrupt act as a personal representative?
5. In what situation is the court required to appoint an administrator rather than an executor?

Introduction

When a person dies, someone must deal with their property and debts—the role of the personal representative. This section explains the different types, how they are appointed, who can be appointed, and the practical steps involved if the person entitled is unable or unwilling to act. Personal representatives are the only persons with authority to collect in and distribute the estate while it is wound up; anyone else risks personal liability if they interfere.

Key Term: personal representative
The individual(s) legally recognised as responsible for administering a deceased person's estate. This includes executors and administrators.

Executors and Administrators: Distinctions

Personal representatives are either executors (appointed by the deceased’s will and confirmed by a grant of probate) or administrators (appointed by the court, usually under the rules of intestacy, or where no executor can act and a grant of administration with the will annexed is required).

Key Term: executor
A person named in a valid will to administer the deceased’s estate.

Key Term: administrator
A person appointed by the court to administer a deceased person’s estate when there is no valid executor or will, or no executor able or willing to act.

Executors derive authority from the will immediately on death. In practice, third parties (banks, investment houses, buyers of estate assets, and the Land Registry) generally insist on sight of a grant of probate before dealing, but legal title in the deceased’s estate vests in the executor from death. Administrators’ authority arises only on the making of the grant. A limited “relation back” may validate acts taken by a would‑be administrator prior to grant if and only if objectively for the benefit of the estate, but administrators otherwise cannot sue or vest property before grant.

Where a valid will exists but no executor can act (predeceased, lacks capacity, refuses, or is a minor), the appropriate grant is letters of administration with the will annexed. The administrator in that scenario distributes according to the will, not the intestacy rules.

Worked Example 1.1

Lorna dies leaving a valid will appointing her friend Emily as executor. Emily is alive but is not willing to accept the role. Who is entitled to administer the estate and how is the right established?

Answer:
If Emily formally renounces before intermeddling, an application is made for letters of administration with the will annexed under the Non‑Contentious Probate Rules (NCPR) r20. The main residuary beneficiary under the will usually has priority and must “clear off” any person with prior or equal right, then applies for the grant. If no residuary beneficiary is able or willing, entitlement passes down the order set out in r20.

Appointment and Eligibility

Anyone can be named an executor in a will provided the appointment is sufficiently certain and it is clear the testator intended the person to perform executorial duties. There is almost no restriction in naming—convicted persons, bankrupts, and minors can be appointed, but practical limits apply at the grant stage.

• Wording must identify the executor and show the intention to appoint. Unclear identification (for example, “one of my cousins”) is void for uncertainty. Poorly drafted wording may fail if it does not make the person’s executorial role clear.
• If a will is completely invalid, the appointment of an executor fails with it.
• An executor cannot be implied or “volunteer” if not named.
• A minor can be named but cannot take a grant until 18. NCPR r32 provides for administration during minority—typically to the person entitled to residue—until the minor attains majority and can take a grant.
• A person lacking mental capacity cannot take a grant; the court may pass over or appoint another (or a trust corporation) to administer.
• Bankruptcy does not bar appointment, and a bankrupt may take a grant, but practical difficulties (for example, giving valid receipts in some contexts) and the court’s discretion to pass over under Senior Courts Act 1981 s116 often make appointment of an alternative prudent.
• Naming a spouse or civil partner is common, but if the parties are divorced or the civil partnership is dissolved at death, the appointment fails by statute: Wills Act 1837 ss18A and 18C (subject to any contrary intention expressly stated).

Key Term: grant of representation
The official court document conferring legal authority on a personal representative to act in relation to an estate. It comprises grants of probate and grants of administration (including with will annexed).

Practical limits on the number of personal representatives also apply. No grant may be issued to more than four personal representatives in respect of the same part of an estate (Senior Courts Act 1981 s114(1)). Minimum numbers matter for administrators: generally one is sufficient, but where there is a minor beneficiary or a life interest subsisting in the estate, the appointment must be to a trust corporation (with or without an individual) or at least two individuals (s114(2)), subject to a discretion to appoint a sole administrator if expedient. The court can appoint additional personal representatives to act with a sole executor while a minority or life interest exists (s114(4)).

Giving Up or Refusing to Act

An appointed executor is not obliged to accept office. They may:

• Renounce: Formally refuse to act before intermeddling with the estate. Renunciation must be in writing, signed (stating no intermeddling), lodged at the registry, and once made can be retracted only with the court’s permission and only if for the benefit of the estate (NCPR r37).
• Reserve Power: Where there are co‑executors, power may be reserved to one or more, enabling the others to take the grant and proceed with administration, while the reserved executor retains a right to step in later by taking a separate grant.
• Fail to Act: If an executor is unwilling but does not renounce and has intermeddled, the registry (or a person entitled) may issue a citation compelling the executor to accept or refuse the grant. If the executor neither proceeds nor properly renounces, the court may pass over and allow those next entitled to administer.

Administrators can also renounce their entitlement but do not lose the right to renounce by intermeddling before grant. Renunciation in one capacity (for example, as spouse under intestacy) operates to renounce all rights to a grant of administration in that estate.

Worked Example 1.2

Martin is named as one of three executors in a will. Martin is abroad and cannot be involved immediately. What procedure allows administration of the estate and what are Martin's options?

Answer:
Probate can be granted to the available executors with “power reserved” to Martin. He may later take a separate grant to join administration if needed. Alternatively, Martin may renounce provided he has not intermeddled.

Revision Tip

Check whether anyone has already intermeddled—acts of collection, disposal, or distribution undertaken as if in office (even apparently minor acts) may remove the right to renounce and can attract personal liability if losses follow.

Who Cannot Act Immediately

Some appointees must wait or may be passed over:

• Minors under 18: May be named but cannot obtain a grant until adulthood. Administration is granted to the person entitled to residue during the minority (NCPR r32).
• Those lacking capacity: The court will pass over and appoint someone able to act. If capacity is later regained, the person may be able to take a grant with court approval.
• Bankrupts: Appointment is possible, but the court may pass over under Senior Courts Act 1981 s116 if unsuitable. Practical impediments include potential difficulties in giving valid discharge for certain assets.
• Corporations/trust corporations: May act if recognised by the court, and trust corporations can be preferred where continuity or independence is advantageous.

Exam Warning

Do not assume anyone named can always act immediately; check age, capacity, and bankruptcy status.

Administrators: When No Executor Can Act

If there is no valid will or executor (or none is willing and able to act), the court appoints an administrator. Entitlement follows strict statutory priority and the applicant must “clear off” all persons with higher or equal status (by establishing death, renunciation, or disqualification/passing over).

Under NCPR r22 (full intestacy), priority generally runs:

• Surviving spouse or civil partner
• Children (and the issue of any predeceased child)
• Parents
• Brothers and sisters (of the whole blood, then half blood) and their issue
• More remote relatives in the prescribed order

Where there is a valid will but no executor able or willing to act, grants are made under NCPR r20 (administration with will annexed). Priority in r20 differs from intestacy and residuary beneficiaries under the will are typically first in line.

Worked Example 1.3

Shirin dies intestate, survived by her husband and an adult daughter from a previous relationship. The husband declines to act as administrator. Who may apply for administration?

Answer:
The adult daughter, being next in priority, may apply for a grant of letters of administration under NCPR r22, having “cleared off” her father (the prior right‑holder) by establishing his refusal.

Exam Warning​

The NCPR rule governing the order of administrators with a will annexed is r20, not r22. Be sure to apply the correct rule depending on whether a valid will exists.

Revision Tip​

Because there is a valid will in existence in administration with will annexed, the administrator’s duties are to distribute the estate in accordance with the will and not the intestacy rules.

Powers and Duties

The core responsibilities of personal representatives are to collect the assets, settle debts, and distribute the estate according to the will or rules of intestacy. These duties apply to all personal representatives and include:

• Assembling and safeguarding estate assets and managing them responsibly pending distribution.
• Paying debts, funeral and administration expenses, and tax liabilities.
• Distributing the remaining estate to those entitled.
• Keeping estate accounts and acting in good faith and with due diligence.
• Applying for any necessary grant to establish authority.

Personal representatives must administer with due diligence and avoid devastavit (waste): Administration of Estates Act (AEA) 1925 s25. While performing their functions, they are subject to fiduciary standards and a statutory duty of care where specified: Trustee Act 2000 s1 applies to personal representatives (TA 2000 s35) in relation to investment decisions, acquisition of land, appointment of agents/nominees/custodians, and insurance.

Key Term: intermeddling
Any action by a person as if acting as personal representative, such as taking estate property or paying estate bills, before formal appointment.

Statutory administrative powers include:

• Sale, mortgage, lease: AEA 1925 s39 gives personal representatives broad powers over both personalty and land (trusts of land functions for realty). A sole personal representative may give a good receipt for capital money on sale of land (Law of Property Act 1925 s27(2)).
• Appropriation: AEA 1925 s41 permits appropriation of assets in or towards satisfaction of a legacy or share, provided no specific beneficiary is prejudiced and any required consents are obtained. Many wills extend this power to allow appropriation without consent.
• Insurance: Personal representatives may insure estate property and should promptly notify insurers of death and empty property.
• Delegation: Appointment and review of agents is permitted; liability arises only if the duty of care is breached in appointment or supervision.
• Investment: Trustees’ general investment power (TA 2000) applies, subject to the standard investment criteria (suitability and diversification) and any restrictions in the will.
• Running a business: Personal representatives generally have no authority to carry on a sole trade unless expressly empowered or necessary to sell as a going concern; partnership agreements and company constitutional documents should be checked.
• Receipts for minors: Minors cannot give good receipt for capital; personal representatives may hold on trust or appoint trustees and use statutory powers to maintain or advance funds (Trustee Act 1925 ss31–32).

Personal representatives should protect themselves by placing statutory notices to creditors under Trustee Act 1925 s27 (for unknown creditors and claimants), waiting six months from the grant before distributing to guard against claims under the Inheritance (Provision for Family and Dependants) Act 1975, and using court orders (for example, Benjamin orders) or insurance where beneficiaries or creditors are missing. Prudence is required when paying debts in insolvent estates: do not prefer among creditors of the same class, and avoid paying inferior debts with notice of superior debts, to prevent personal liability (Administration of Estates Act 1971 s10).

Worked Example 1.4

Elliot dies leaving a will that names his two friends as executors. Both start collecting debts owed to the estate before the grant is issued. Later, one tries to renounce executorship. Is this possible?

Answer:
No. By having already dealt with the estate (intermeddled), the executor has accepted office and cannot renounce.

Worked Example 1.5

Sofia dies intestate leaving her husband, who is suspected of having unlawfully killed her but has not yet been convicted, and her adult son. Who should take the grant?

Answer:
The High Court may pass over the husband under Senior Courts Act 1981 s116 if it is necessary or expedient (for example, public policy where the slayer rule would exclude his beneficial entitlement), and appoint the son or an independent administrator. Passing over is discretionary and may be exercised where the person entitled is unsuitable or there are exceptional circumstances.

Worked Example 1.6

Amir was the sole executor of his mother’s estate (Estate 1). Amir later dies, naming Priya as his executor (Estate 2). Who administers Estate 1?

Answer:
If Priya takes a grant of probate for Estate 2, a “chain of representation” arises and she becomes executor of Estate 1 automatically. No administration de bonis non is required unless the earlier grant was revoked or no chain exists.

Resignation, Removal, and Replacement

An executor or administrator who has not intermeddled may renounce (provided a formal renunciation is lodged). If a personal representative is unsuitable or unable to act properly, the court can pass over a person otherwise entitled (Senior Courts Act 1981 s116) or remove/replace a personal representative. The court’s power to appoint a substitute or terminate the appointment of one or more personal representatives (but not all) is contained in Administration of Justice Act 1985 s50 and may be used even before an executor has taken a grant. Appointment of a judicial trustee to administer may also be sought in appropriate cases.

Key Term: passing over
The process by which a person otherwise entitled to act is omitted in favour of another person when deemed necessary or expedient by the court.

Guarantees or sureties can be required in certain limited cases (Senior Courts Act 1981 s120) to protect those interested against breach by an administrator, although this is rare in modern practice.

If no one is able or willing to act as personal representative, or all are disqualified or passed over, the court will appoint an administrator in accordance with statutory order or, as a last resort, appoint a professional or trust corporation to administer the estate.

Liability and the Executor de son tort

Anyone dealing with estate property without authority may become an executor de son tort—liable for any demands that could have been enforced against a lawfully appointed representative. They are personally liable for misappropriated assets, losses caused, and can be compelled to account. A breach of duty by a personal representative (misapplication, wrongful distribution, or negligent delay causing loss) is a devastavit. Liability is joint and several among personal representatives for their own breaches; a personal representative is not automatically liable for a co‑representative’s breach unless they permit it or fail to supervise and so breach their own duty.

Key Term: executor de son tort
A person who, without lawful authority, assumes to act as executor and incurs the responsibilities and liabilities of one.

The court retains discretion to relieve a personal representative from personal liability for breach if they acted honestly and reasonably and ought fairly to be excused (Trustee Act 1925 s61), but passive administration or failure to meet expected standards is unlikely to be excused. Beneficiaries retain rights to trace misapplied property (subject to defences available to bona fide purchasers and certain equitable limitations) and can bring personal actions against those who wrongfully receive estate assets.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Personal representatives are either executors (appointed by will) or administrators (appointed by the court); executors’ authority arises at death, administrators’ only on grant, with limited relation back to validate acts for the estate’s benefit.
• Naming an executor requires clear identification and intention; minors and those lacking capacity cannot take grants immediately; divorced former spouses’ appointments fail unless the will provides otherwise.
• Renunciation must be formal and before intermeddling; power can be reserved to a co‑executor; citations can compel an executor to accept or refuse a grant.
• Administrators are appointed in strict order of priority (NCPR r22 for intestacy; r20 for administration with will annexed), and applicants must “clear off” prior claimants.
• Statutory powers include sale, lease, investment, insurance, appropriation, and delegation; personal representatives must administer with due diligence and comply with the Trustee Act 2000 duty of care where it applies.
• Numbers limits and minimum appointments apply (SCA 1981 s114); trust corporations may be appointed and are often preferred where independence or continuity is needed.
• Courts can pass over unsuitable personal representatives (SCA 1981 s116), appoint substitutes or remove existing personal representatives (AJA 1985 s50), and, in rare cases, require guarantees (SCA 1981 s120).
• Protective steps include Trustee Act 1925 s27 notices, prudent timing of distribution (six‑month window against 1975 Act claims), and using court orders or insurance for missing beneficiaries.
• Intermeddling can result in personal liability as an executor de son tort and prevent renunciation; devastavit liability applies to personal representatives who mismanage or wrongfully distribute the estate.

Key Terms and Concepts

• personal representative
• executor
• administrator
• grant of representation
• intermeddling
• passing over
• executor de son tort