2. Personal Representatives

Question 1

How many executors should be appointed?

Answer 1

In principle, no max number of executors that can be named.

Little point if naming more than 4 because a max of 4 can apply for the grant of probate to the same assets. Minimum number is 1 - often this is sufficient for a small, simple estate where the executor is the sole or main beneficiary.

Prudent to appoint at least 2 executors, or name a substitute for a sole executor.

Question 2

What is the risk if you only appoint 1 executor?

Answer 2

They may pre-decease the testator or may subsequently divorce (they would then be treated as though they had predeceased them).

Question 3

How many should you appoint if the executors will also be the trustees?

Answer 3

Sensible to appoint at least two so that they can give a good receipt for the proceeds of sale of any land held in the trust.

Question 4

Who can be an executor? (3) What are the advantages/disadvantages of chosing specific categories? (3) (3) (4)

Answer 4

The testator may appoint any combination of:

1. Individuals who are not professionals (family or friends)
a. Trustworthy/ familiar with the testator and their affairs
b. Unlikely to want to charge the estate for their time spent in dealing with it
c. If the estate is other than straightforward, it is likely that the individuals will lack the expertise necessary to complete the administration and will will have to employ a solicitor - the costs of this will be paid from the estate

2. Solicitors or other professionals (as individuals or as a firm)
a. Necessary expertise to administer the estate
b. Family and friends spared the burden at a time when they may be grieving
c. Will expect to be paid not just for expenses incurred, but also for the time spent doing the work
d. If individual solicitor, risk that they may die or retire = to avoid this, a firm of solicitors can be appointed. If the firm is a GP (not an LLP), it has no legal personality and so the appointment should be of the partners in the named firm (important to specify that it is the partners in the firm at the date of death who are appointed). Usual to express the wish that only two partners will take the grant and act in administration. Sensible to provide for the possibility of the firm changing name, amalgamating or becoming LLP between date of will and date of death.

3. Banks or other trust corporations
a. Most high street banks have a trustee department, and can act via the mechanism of a trust corporation.
b. similar advantages to appointing a firm of solicitors (will not die or retire, and there should be financial and some legal expertise).
c. DIsadvantages are that the corporation may seem large and impersonal to the family.
d. Charging methods may be disadvanatageous, as they usually charge a percentage of the value of the estate, which can be a significant expense.

Question 5

Can a trustee/ executor profit from the estate?

Answer 5

No - rule of equity that an executor or trustee may not profit.

Can recover only out-of-pocket expenses from the estate or trust fund but cannot be remunerated for time spent in performing their office unless expressly authorised.

Question 6

What is the exception to the general rule that executors cannot be remunderated?

Answer 6

s 29 Trustee Act 2000 - professional trustees are entitled to received reasonable remuneration for all services (must be acting in the course of a profession or business which includes the provision of services in connection with the management or administration of trusts.

HOWEVER, they can only charge for services if each other trustee has agreed in writing that they may be reminerated for their services = this means that a sole trustee will be unable to charge and a co-trustee will be able to do so only with the permission of all co-trustees.

Question 7

Regarding Appointment of Executors, what should you put in the will?

Answer 7

1. Trustees (if relevant)
2. Number of executors
3. Choice of executors
4. Charging provisions (in case s29 cannot be relied upon)
5. Guardians - if infant children.

Question 8

When can an executor renounce their right to take the grant?

Answer 8

They can only renounce if they have not intermeddled in the estate (e.g. doing taks a PR might so - selling the deceased’s chattels).

By intermeddling, executors accept their appointment.

Question 9

How can you renounce?

Answer 9

Using Form PA15, signed by the person renouncing with a witness. and must be filed with HMCTS.

You will remain a trustee despite renouncing the executorship. THis will be to be disclaimed separetely.

Question 10

How many people can probate be granted to?

Answer 10

Max 4

Question 11

What happens if someone cannot act as executor initially, but does not want to renounce the right to a grant of probate? Also if there are more than 5 executors.

Answer 11

The current executor can apply for the grant ‘with power reserved’. This is confirmed in the PA1P.

The person with the power reserved then has to apply for a grant is they wish to act - it is not automatic.

Question 12

Is it possible to obtain a grant limited to part only of the estate?

Answer 12

Yes - used when particular expertise is required.

Up to 4 for dealing with books (literary executors), and up to 4 for dealing with everything else.