The duties are basically the same irrespective of whether the person died leaving a Will. In the event of there not being a Will some duties and rights do not arise until the Grant has been issued by the Court, whilst where there is a Will most duties and rights arise immediately following the death.
The Personal Representative must act in accordance with the terms of any Will and the general law. The Personal Representative must ensure that all funds and property due to the estate pending distribution are collected in and held by or in the names of the Personal Representatives. These funds and property must be properly insured and only used to benefit the persons named in the deed as entitled to benefit. The Grant is the legal document issued by the Probate Court confirming that the persons named are the only persons entitled to deal with the deceased’s assets.
Great care needs to be taken when Wills contain trusts such as Life Interest Trusts and Discretionary Trusts.
The Personal Representative is expected to bring to bear any skills and expertise he may have to the role; and hence a higher duty is placed on a professional Personal Representative. Personal Representatives should record the decisions they take and reasons behind them as these could be challenged in court by a beneficiary years later.
The Personal Representative must always act in the best interests of the beneficiaries as a whole and this overrides any personal, family, business, religious or ethical interests or beliefs they may hold. If a conflict of interest arises then the Personal Representative should excuse himself from voting on the decision or follow the independent professional advice sought. This can be very difficult for the nonprofessional Personal Representative if there are internal family conflicts or pressures, especially over requests for keepsakes or items of the deceased’s jewellery (which are not specifically dealt with in any Will) and which may have an intrinsic value.
Personal Representatives should properly evaluate and have valued if necessary, before giving away or otherwise disposing of any asset not specifically left under the terms of the Will. The Personal Representatives should seek the agreement of the beneficiaries who take the residue of the estate, as by disposing of the asset they may be depriving those beneficiaries of money properly due to them. Also if Inheritance Tax is payable on the estate an accurate valuation of all the deceased’s possessions will be required by the Inland Revenue.
The Personal Representative must not be seen to be obtaining any personal profit. Personal Representatives other than those acting in a professional capacity are unable to charge for their services. Similarly Personal Representatives must not be seen to profit by themselves or their family or associates, buying or selling assets to or from the estate.
Where the Personal Representatives are given discretion under any Will they must fully acquaint themselves as to the terms of that discretion and any limitation placed by statute or the deed. The Personal Representatives must record their decision and reasons for the decision. Any decisions reached must be fair to the interests of all beneficiaries.
Our Private Client team are on hand to assist with Wills, Lasting Powers of Attorney, Deputyship Applications, Trusts and Estate Planning, Probate. Please note that, during lockdown, our preferred route for client appointments is online (Zoom, Teams, Skype or WhatsApp). Contact us on 01243 532777 or email us at email@example.com.