13 June 2011 by

Executors vs Administrators

A person who administers an estate is known either as an executor or administrator. An executor is appointed in a Will; if there is no Will then an administrator must be appointed by the Court.

There are certain differences between administrators and executors (besides the name), one of which being that an executor derives his powers from the Will itself, whilst an administrator derives his powers from the Grant of Letters of Administration, which is the document issued by the Court that confirms the appointment of the administrator. This means that an executor has full authority in relation to the estate from the moment of death, whilst an administrator does not.

In most estates this isn’t a particular problem, however the recently reported Court of Appeal case of Millburn-Snell and others v Evans [2011] illustrates where this can cause difficulties. It is an established principle of law that an administrator cannot sue on behalf of the estate until he has obtained a Grant. A fairly common example where it might be necessary to take legal action on behalf of an estate, would be where an estate includes a property that is let to tenants, and those tenants stop paying rent. Ordinarily, you would launch eviction proceedings as soon as possible to remove them from the property and recover any unpaid rent. If an administrator wants to do this on behalf of an estate, it is impossible to launch those proceedings until the Grant has been issued by the Court. This can take some time as a full investigation into the assets of the estate must be made, the inheritance tax account prepared and tax paid before the Grant will be issued. If there’s a dispute in the estate it can take even longer.

If an administrator does launch legal proceedings without a Grant they can be struck out by the Court, and he may have to pay the defendant’s costs of the action. These costs would likely come from his own pocket rather than from the estate.

It is possible to obtain a limited grant intended to deal with litigation only; these can usually be obtained much quicker than a full grant, however the cost to do so can potentially be significant.

By far the better (and cheaper) solution is to have a valid Will in the first place, which makes it important for all landlords to have a properly drawn up Will, whether contemplating proceedings or not.

For a free initial consultation on Wills and related matters please contact us.

9 June 2011 by

Sticks and Stones

It is extremely unusual for the Court to order costs in children cases, unless one party has gone beyond the limit of what is considered to be reasonable in pursuing the application. The issue of costs is ultimately at the Judge’s discretion and will be dealt with on a case by case basis.

9 June 2011 by

Who’s the Daddy

The use of DNA paternity testing in Children Act Proceedings has become very common in cases where there is some doubt or suggestion that the father is not the child’s biological parent.

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