Personal Representatives
Overview
The law prescribes the formalities by which assets are transferred to successors upon a person’s death. The entitlement to assets is determined by the terms of the Will, subject to the rights of spouses and children. If there is no Will or no fully operative Will, the intestacy rules apply. See our separate chapters in that regard.
The deceased’s assets or his “estate” are administered by his personal representative. In the case of a Will, the personal representative is referred to as an executor (or the female equivalent, as an executrix). In the case of an intestacy, where there is no will, the personal representative is referred to as administrator (female, administratrix).
In the case of a Will, the executor is generally named in the Will. If the named executor has died or is unable, to act then rules lay down who is entitled to act. There is an order of entitlement, where successive persons next entitle, neglect or refuse to act. The fundamental principle is that the entitlement to the grant follows the “interest”. The person with the greatest interest has the pre-eminent right to apply for a grant.
In the case of intestacy (no will), rules lay down the order of persons entitled to apply for a grant. Generally, the person with the greatest interest, who is usually the closest relative, such as a spouse, has the pre-eminent right to apply. Where there are several persons in an equal degree of entitlement, the first person to apply has the right to proceed.
Grant of Representation
The executor or administrator requires a formal grant from the Courts Offices, in order to have the authority to administer and vest the deceased’s assets in accordance with the Will or intestacy rules. Where there is a Will, the grant is referred to as a grant of probate.
The process of obtaining a grant is referred to as “proving” the Will as the true, last, valid and applicable Will of the deceased. The grant authorises the named executor as the person entitled to act. In the case of intestacy, the grant is called letters of administration. It validates the right of the named administrator to administer the estate.
The grant of representation is a critical legal document. Without it, the deceased’s assets may not generally be validly transferred. It sometimes happens that a grant of representation is not taken out, but the beneficiaries go into possession of assets. In this case, the beneficiaries may take title or ownership of the assets, by long possession/squatters’ rights.
Personal Representatives I
The Succession Act vests the legal title to the deceased person’s assets in his personal representatives. The personal representatives hold the assets as trustees for the persons entitled to them. This means that although they are nominal owners or holders of the assets, but that they are subject to fiduciary duties to deal with the assets for the exclusive benefit of the persons entitled. Frequently, the personal representative may be a beneficiary or even the sole beneficiary.
The persons entitled to the deceased’s assets do not have a direct beneficial right to the assets concerned until the estate has been administered. They have a right only, to enforce the administration of the assets in accordance with the Will or intestacy rules. This entitlement can be enforced in a Court proceeding, known as an administration action. In an administration action, the Court makes an order to compel the administration of the estate. Where such an Order is granted, the administration may be ordered under the auspices of the Courts Office.
Personal Representatives II
Although the personal representatives are deemed trustees, they are not trustees for all purposes. The Statute of Limitations (squatting) rights cannot be claimed by a trustee against a beneficiary. However, because of the common situation that assets pass from generation to generation without a grant of probate, it was deemed necessary in Ireland to provide that a personal representative who is a beneficiary may acquire assets by possession, even against a beneficiary.
Strictly speaking, an executor’s authority to act commences on death. An executor could take steps to administer the estate without a grant of probate. However, the grant of probate is essential to protect the executor and third parties dealing with the executor, It is a formal certification of the validity of the last Will and the validity of the executor’s appointment.
The administrator does not obtain a right to act on death. He has no right to act in relation to the deceased’s asset whatsoever until the letters of administration issue to him. Technically the assets of a deceased vest in the President of the High Court until the grant of representation issues. This does not give the President or the Courts Office any role in administering the estate. It is purely a technical “holding” provision, pending the issue of a grant of administration.
The Executor
An executor can be named personally in a Will or by reference. The appointment of an executor may also be implied where although a person is not specifically appointed as such he is requested to perform the functions of the executor.
Strictly speaking, any person can be executor but in practice, it is desirable that a person of full age and mental capacity should be appointed. If a person under age is appointed his guardian may be granted a special grant to act while the person is underage.
If the executor is outside of the jurisdiction the Court may grant a limited grant to a creditor or other person interested in the estate to last while the person is absent.
A trust corporation which is a company especially established for administering the trust and being an executor or administrator may be appointed the personal representative. A trust company must comply with certain conditions including being appointed by the High Court or an unlimited company with a minimum paid up share capital.
Acceptance of Office and Intermeddling
A person named in a Will need not become executor unless he chooses. If he starts acting as executor he may be deemed executor by reason of intermeddling to the extent that he so does. However, he cannot be forced to extract a grant.
If an executor accepts the role by implication by doing more than being executor by way of intermeddling he may be forced to take a grant. Subject to this, an executor has the choice of becoming a personal representative or renouncing either unconditionally or reserving his right.
A person may be deemed executor by acting as such. This only applies in a negative sense. A person may have started intermeddling with the estate in which event he may be liable as executor by reason of having so intermeddled. This does not give the person the rights of an executor unless and until the relevant grant issues. If, for example, the executor receives sums due to the deceased’s estate he may be deemed executor for the purpose of responsibility.
Any person who with the intention of defrauding creditors or without full value who receives or holds any part of the deceased’s assets will be deemed to be executor to the extent of assets received or liabilities which he has released to a third party.
He may be sued by the actual personal representative, creditors or other parties to the extent of assets coming into his hands or debts he has purported to release. Once this quasi executor role has accounted for monies received he has no further liability or rights in relation to the estate. He cannot be forced to extract a grant.
Joint Representatives
Any number of executors may be appointed. It is not necessary that they all apply for a grant of probate. An executor may reserve his right to apply later to be made joint executor. He may renounce his right.
Persons dealing with executors under the grant of probate may deal with them in good faith notwithstanding that not all executors in the Will are named in the grant of probate.
It is also possible to have joint administrators. Generally, no more than three persons will be appointed administrator. A single administrator is more normal.