When someone dies, their assets and liabilities (collectively their estate) must be dealt with by their Personal Representatives (either Executors or Administrators).
If the deceased left a Will, this will usually specify who the Executors should be.
Where there are no Executors, for whatever reason, the order of entitlement to apply to be the Administrator of the estate is set out in law.
What is Intermeddling?
Intermeddling is performing actions that would normally be carried out by the deceased's Personal Representative (and essentially holding yourself out to be a Personal Representative), which include:
- Selling the deceased's assets.
- Disposing of the deceased's personal possessions.
- Paying debts owed by the deceased.
- Collecting debts due to the deceased and providing receipts for their payment.
- Carrying on the deceased's business.
Examples of acts that the Court have held do not amount to intermeddling are:
- Organising the deceased's funeral and arranging payment from their estate.
- Insuring the deceased's assets.
- Collecting the deceased's assets for safekeeping.
- Gathering the deceased's papers.
- Creating an inventory of the deceased's assets/liabilities.
- Arranging urgent repairs to the deceased's property/assets.
- Opening executor's bank account.
- Providing food to the deceased's dependent children and animals.
Options for a Personal Representative who has not Intermeddled
Where an Executor is appointed in a Will, and they have not intermeddled in an estate, they have four options:
- Apply for the Grant of Probate: the Court will confirm the Executor's appointment and the Executor will have full legal authority (jointly with any other Executors who have applied) to administer the deceased's estate.
- Appoint an attorney to apply for the Grant and administer the estate on your behalf: This can be a friend, relative, or professional (our Trust Corporation are appointed as attorney for several Executors).
- Have power reserved to them (if there are other Executors appointed who wish to take the Grant): this means the Executor is stepping back when it comes to administering the estate and will not have the authority to administer the estate initially, but that they can apply for a Grant in their own name at any time.
- Renounce their right to take the Grant: an Executor appointed under a Will is initially under no duty to administer the deceased's estate. By renouncing, this means that the Executor no longer has any power to administer the deceased's estate and usually cannot apply to administer the estate in any other capacity (such as a beneficiary) if there are no other Executors. Even if an Executor renounces their right to take the Grant, they may still be a trustee of any trusts contained in the deceased's Will and should investigate this and retire as a Trustee if desired.
Where someone is entitled to apply to be the Administrator of an estate, they have options 1, 2, and 4, above, available to them.
Instead of a Grant of Probate, they will apply for a Grant of Letters of Administration.
Consequences of Intermeddling
Where someone has intermeddled in an estate, they become an "executor de son tort" and may face various consequences:
- An Executor appointed in a Will loses their ability to renounce their right to take the Grant. They can either apply for the Grant of Probate, have power reserved to them (if another Executor is willing to apply for the Grant), or appoint an Attorney to act on their behalf.
- An Executor who has intermeddled but not applied for the Grant of Probate within six months may be "cited" by the Court, which is, essentially, an order that they must apply for the Grant.
- The Intermeddler will be liable to creditors and beneficiaries of the deceased for any loss they have caused (but limited to the assets they have handled).
- If Inheritance Tax is payable, the Intermeddler is liable to pay any Inheritance Tax on the assets they have handled.
- In some cases, where the Intermeddler acts dishonestly, they may be committing a criminal offence.
Suppose you are appointed as Executor under a Will or are entitled to apply to be the Administrator of an estate.
In that case, you must consider if you want to administer the estate before taking any steps that could be seen as intermeddling.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.