Duties, Liabilities and Rights of Personal Representatives

The term Personal Representative in a deceased person’s estate includes an executor who is appointed under the terms of the deceased’s Will or, where the deceased has died without a Will (intestate) the Personal Representatives would be the people taking out the Letters of Administration in the deceased’s estate. Sometimes, a deceased person may have a Will, but all the named executors in the Will have either died or are otherwise unable to act. In that case, the law allows certain categories of people to apply for Letters of Administration with Will Annexed. Such people are also referred to as Personal Representatives.
Personal Representatives have a number of statutory powers that are implied in all cases, whether the deceased died with or without a Will. These statutory powers are subject to awkward limitations and professionally drawn Wills usually give the Personal Representatives wider powers.
If Personal Representatives are unable to act in the administration of an estate, then they can delegate by Power of Attorney the exercise of their powers and discretions. The maximum period of delegation is 12 months. It is important to bear in mind that Personal Representatives remain liable for the acts of the delegates. If Personal Representatives are to be absent for longer periods, they should either renounce probate or have power reserved to them.
The Personal Representatives have full power to carry out the Administration of the deceased’s estate once the Grant of Representation is made. To administer the estate effectively the Personal Representatives must:
• Take all reasonable steps to collect in the deceased’s assets;
• Take reasonable steps to collect money due to the Estate and instigate proceedings where necessary;
• Pay the deceased’s funeral and testamentary expenses;
• Distribute the legacies; and
• Complete the administration and distribute the residuary estate.
The Personal Representative is personally liable for loss to the estate arising from a breach of duty committed as a Personal Representative. Examples of breaches of duty are:
• Omitting to safeguard assets, for example failing to take the necessary steps to preserve the value of assets;
• Maladministration, for example where the statutory order for the payments of debts is not complied with;
• Misappropriation of assets, for example where the Personal Representative uses the estate assets for his/her own personal circumstances rather than those of the estate.
A Personal Representative is liable for his own acts or emissions. He/she is not liable for the acts or emissions of any co-representative unless he failed to prevent a co-representative from committing a breach of duty when he should have reasonably known about it.
To assist them in their role, Personal Representatives also have the power to employ professional agents such as stockbrokers, estate agents, banks and solicitors to carry out particular activities on their behalf. If the Personal Representative can show that they employed the agent in good faith and exercised care in the selection of the agent the Personal Representative is not liable for the acts of the agent.
At Horwood & James, we offer a range of services to assist Personal Representatives in their role and would be happy to meet with you to discuss this with you.