Will Disputes.

21 August 2012

When someone dies and leaves a Will, the Will is administered by executors. The executors are appointed in the Will by the deceased. If the deceased fails to appoint executors, or those appointed have died or refused to act, then the court will look to the beneficiaries of the Will or the Intestacy Rules to ascertain who should be appointed as the administrator of the estate in the absence of named executors. Once the will has been delivered to the court and the court grants the probate, the executors named in the Will then have the authority to administer the estate from the date of death. If the executors appointed by the Will are applying to the court to deal with the estate, then once the Will and relevant H M Revenue and Customs inheritance tax forms have been delivered to the court the court will grant to them the Grant of Probate. If the Will fails to name executors or the named executors refuse to act, then the appointed administrators will only have authority to deal with the estate once the court has received the Will and relevant H M Revenue and Customs inheritance tax forms and has granted to the administrators Letters of Administration with Will Annexed. If someone dies without a Will then this is known as Intestacy. The Intestacy Rules govern who is entitled to apply to the Court to deal with the deceased's estate. The person who is appointed to deal with the Intestacy is known as the administrator. The administrator has authority to administer the estate once the oath and relevant H M Revenue and Customs inheritance tax forms has been delivered to the court and the court has granted Letters of Administration. Administering the estate includes collecting the assets of the estate, paying any liabilities such as funeral costs and bank loans and then distributing the assets according to the wishes of the deceased as expressed by the Will or in accordance with the Intestacy Rules if there is no Will. Usually executors or administrators seek the assistance of solicitors when administering an estate to ensure everything is done correctly,. When the court grants either Probate, Letters of Administration with Will Annexed or Letters of Administration the executors or administrators swear an oath in court to administer the estate in accordance with the law. In addition executors and administrators are under a statutory duty to administer the estate with such care and skill as is reasonable in the circumstances and a fiduciary duty to keep accounts. However circumstances can arise where you become suspicious that the executors or administrators may have misappropriated some of the money for themselves or have distributed the estate incorrectly. In these circumstances what do you do? First of all you should go to the Probate Office and get a copy of the Will if there is one. From this you will be able to determine what you were entitled to receive. You should also request the executors to provide a copy of the accounts for the estate so you can determine what the deceased owned. If there is no Will then your solicitor will contact the administrator of the estate to request a copy of the accounts and a list of the deceased's relatives that they believe are entitled to receive something under the Intestacy. You and your solicitor may then wish to investigate the deceased's family tree to verify whether the correct people have been provided for under the Intestacy. If it appears that you did not receive everything to which you were entitled it is advisable to seek some legal advice from a solicitor. If it can be proved that the executors or administrators misappropriated the money then they are liable to you personally for the loss and must pay it back to you regardless of their own financial arrangements. With misappropriation there is no time limit on when you can make a claim against the executors or administrators, but it is advisable to make a claim sooner rather than later. If the matter can not be resolved with the executor then you can start a court claim and the matter will be decided by the court. If the executors and administrator have failed to follow the Will or Intestacy Rules correctly or have misinterpreted them leading them to distribute the estate incorrectly then the claim would again be against the executors or administrators personally, who can then join into the claim any professional advisors who may have given them the wrong advice in distributing the estate. This type of claim is often a negligence action which would be decided by the court. Gepp & Sons have highly experienced lawyers who are able to offer advice on Will disputes. For more information please complete our Enquiry Form call us on 01245 493939 or email privateclient@gepp.co.uk The above is not legal advice; it is intended to provide information of general interest about current legal issues.