What if a representative is not administering an estate?

As a beneficiary under a will or the rules of Intestacy, you will almost certainly want the administration of a deceased’s estate to take place quickly and smoothly. 

If the deceased made a will then they will have appointed an ‘executor’ to deal with the estate, but under the rules of intestacy there are categories of people who may do so by taking up the role of ‘administrator’. Both of these roles are commonly known as a ‘personal representative’. 

The role of a personal representative  

When someone dies, everything that they own including their property, money (bank accounts, shares, pensions), belongings, and other affairs, aside from those held jointly, form part of their estate. It is these assets that need to be distributed to the deceased’s chosen beneficiaries or those entitled to the estate under the rules of intestacy.  

A Personal Representative has a number of duties including:

•  Identifying everything in the estate
• Collecting in all the assets
• Valuing the assets
• Calculating debts and liabilities
• Dealing with inheritance tax
• Applying for a grant of probate (if necessary)
• Arranging and dealing with the funeral
• Drawing up accounts
• Distributing the assets to the rightful beneficiaries.

How long should it take to administer an estate?

Given the amount of work involved, it is understandable that it can take some time for a Personal Representative to comply with their duties. In many situations a Personal Representative will be a family member or friend who has no experience in dealing with the administration of an estate. 

Before taking action against a Personal Representative for having not received your inheritance, it is vital to discuss why this may be the case by taking into consideration the above factors. A simple discussion can reveal that they are encountering difficulties, such as a non-cooperative bank or having to collect assets held abroad, which are delaying matters.

It is also important to remember that debts of the estate need to be settled within one year otherwise the personal representative needs to justify the delay. This means that a Personal Representative cannot be forced to distribute the estate until the year is up and even if it is the court will not order them to distribute if they can show that there are good reasons for not doing so.

However, there will be times where a Personal Representative breaches some or all their duties. This breach will allow a beneficiary the chance to act against the Personal Representative in several ways.

Possible actions you can take against a Personal Representative

Where a Personal Representative has breached their duties, a beneficiary may take certain actions. These include:

(a)  Issuing a citation to accept or refuse a Grant

A citation to accept or refuse a Grant is used in cases where a Personal Representative does not make an application for a Grant of Probate or Grant of Letters of Administration, but also refuses to resign from their role. 

When a named Personal Representative is cited and does not appear to the citation, their right to act will cease. This is a useful tool for forcing an executor or an individual with a greater right to act as an Administrator to either deal with the estate or allow someone else to do so.  

(b)  Citation to take Probate

A citation to take probate is used in cases when someone has ‘intermeddled’ with an estate but, 6 months after the death, has still not taken the Grant. “Intermeddling” means that the executor has handled the deceased’s assets such as encashing a bank account or holding themselves out in the role of an executor. If the Personal Representative does not comply with the citation, the person who cited them can make an application for the Personal Representative to be legally required to take a grant within a specified time or for an order to apply for the Grant themselves.

(c)   Application to remove, substitute or pass over personal representative

The courts have several powers available to remove, substitute or pass over a Personal Representative.

Section 116 of the Supreme Courts Act 1981 allows the court to pass over a Personal Representative before a Grant is obtained and to appoint an alternative administrator. The court, however, cannot exercise this power after the grant is issued. Under Section 50 of the Administration of Justice Act 1985 an executor can be removed before or after a Grant of Probate has been issued or an administrator after the Grant of Letters of Administration has been issued.

It is important to note that the court will not easily step in to cite or remove a Personal Representative without clear evidence of the breach of their duties. There can be cost consequences for making an unsuccessful application and therefore it is important to take independent legal advice before proceeding.

A recent example of an executor not correctly administering an estate is the case of Bo Bruce (full title Lady Catherine Anna Brudenell-Bruce). Bo was a contestant on the television talent show The Voice, finishing runner-up in the 2012 series.

Bo and her brother Thomas (full name Viscount Savernake) are the children of Lady Rosamond (former Countess of Cardigan) and David Brudnell-Bruce (Earl of Cardigan). Lady Rosamond and David Brudnell-Bruce divorced in 2008. Their mother died in 2012 leaving her estate to Bo and Thomas in equal shares. Thomas was named as the executor to their mother’s estate which Bo had accepted. However, since 2012, Bo and Thomas have been involved in a disagreement regarding their late mother’s estate. Thomas wanted to keep the property, Leigh Hill House, in the family, as did Bo up until January 2015 when she became “desperate for money” and wanted the estate sold. The property was valued at £2.4 million.

As her brother refused to administer the estate, Bo made an application for him to be removed as an executor to allow the administration of the estate to continue.

Deputy Master John Lindwood ordered that Thomas was to be removed as the executor to his mother’s estate as he “ignored his responsibilities” to his sister by claiming he wanted to keep the house in the family. He further explained how there was no “wrongdoing” by Thomas, but that he had to be replaced as an executor to allow the estate to be properly administered. An independent executor is to be appointed to deal with the administration of the estate.

This case shows the difficulties beneficiaries may be faced with when an executor has a conflict due to being a beneficiary and a next of kin. Some may argue and sympathise with Thomas as he wanted to keep Leigh Hill House in the family as it was the family house he had grown up in. 

On the other hand, Bo rightfully wanted her share of the property as she was in financial need. In this case, Thomas had a duty to Bo, as a beneficiary, to administer the estate. Several attempts were made to settle this dispute between Bo and Thomas. Bo had offered Thomas the chance to purchase her share in the estate so that Thomas could continue to live and keep the house in the family. However, Thomas could not afford this and instead chose to pay £20,000 a year to Bo as rent, along with paying for her yearly maintenance costs. However, as Bo was in financial need, this was not enough and this forced her to continue to court.  

This case also highlights the importance of seeking to resolve issues prior to going to court. Not only will Bo and Thomas suffer the financial costs of going to court, but also the emotional costs being the breakdown of their relationship. 

It can be deeply frustrating waiting for an estate to be administered, particularly where a Personal Representative is not open with you as to the progress of the same. It must however be borne in mind that a Personal Representative owes their duties to the beneficiaries and must act in their best interests. If you are encountering issues with a Personal Representative then we have a specialist team at Birkett Long who would be happy to assist you. 

If you require any more information on this topic please contact Amanda on email at amanda.smallcombe@birkettlong.co.uk.