Law of succession England

A) Succession upon death

In every legal system there must be rules governing the distribution of property after death. These rules must be designed to determine who is to receive the property and the manner in which distribution is to be effected. These two problems are answered by the rules relating to testate and intestate succession, and by the rules governing the administration of estates, respectively. US: laws governing wills come into play when a will is probated. To probate (prove) a will means to establish its validity and carry out the administration of the estate through a process supervised by a probate court. probate laws vary from state to state. Nevertheless, the Uniform Probate Code, passed in 1969 and significantly revised in 1990, codifies general principles and procedures for the resolution of conflicts in settling estates and relaxes some of the requirements for a valid will contained in earlier state laws. Inheritance and succession laws still vary widely among states, however.

A.1.

Testate and intestate succession

A.1.1. Testate Succession Testate succession arises where the deceased person has expressed his wishes concerning the devolution of his property during his lifetime, in the form of a will. Intestate succession arises where there has been no will or where, for one reason or another, a will has failed to take effect, and consequently the people who are entitled to the property have to be designated by rules of law A.1.1.1. The nature of a will A will is a declaration made by a person in his lifetime of his wishes concerning the devolution of his property after his death. The characteristics of a will can be outlined as follows: 1) It is ambulatory: Unless there is a clear intention to the contrary it takes effect from the time of death, not from the time it is made; it is said to be ambulatory until death. The will speaks from the death. 2) It is revocable: (see A.1.1.6.) 3) It is the sole expression of testamentary wishes. Even when a second will does not entirely revoke the first will as a result of it not being entirely inconsistent therewith, it is inaccurate to speak of a person leaving two wills; he or she does leave, and can leave, but one will. A will may, however, be rectified by court order, so as to give effect to a testators intentions US: when it can be shown that the decedents plan of distribution was the result of fraud or undue influence, the will is declared invalid. Undue influence may be inferred by the court if the testator ignored blood relatives and named as beneficiary a nonrelative who was in constant close contact with the testator and in a position to influence the making of a will.

4) Wills of land are governed by the law of the country in which the land is situated, I.e. the lex situs. Wills of personal property must be made in accordance with the law of the testators domicile at his death. US: unless statutory formalities are followed, the will will be declared void, and the decedents property will be distributed according to the laws of intestacy of that state. Nonetheless, the requirements are not uniform among the jurisdictions. A.1.1.2. Testamentary capacity The general rule is that abnyone (except a minor or a person of unsound mind) may make a will. If incapacity exists, it must be clearly proved. The court can order a statutory will for an adult patient under the Mental Health Act 1983. US: -Legal age: the legal age for executing a will varies, but in most states and under the UPC, the minimum age is eighteen years. -The sound mind requirement: the concept of being of sound mind refers to the testators ability to formulate and to comprehend a personal plan for the disposition of property. Generally, a testator must: 1) Intend the document to be his or her last will or testament. 2) Comprehend the kind and character of the property being distributed, and 3) Comprehend and remember the natural objects of his or her bounty (usually, family members and persons for whom the testator has affection). A.1.1.3. Formalities The Wills Act 1837, as amended by the Administration of Justice Act 1982, prescribes the following formalities:

a) the will must be in writing, and signed by the testator, or by some other person in his
presence and by his direction; and it must appear that the testator intended by his signature to give effect to the will. US: the writing itself can be informal as long as it substantially complies with the statutory requirements. The form is not so important as the intent of the testator. A holographic will is one that the testator writes, dates, and signs entirely in his own handwriting.

B) the signature must be made or acknowledged by the testator in the presence of two or more
witnesses present at the same time. US: a fundamental requirement for a valid will is that the testators signature must appear on the will, generally at the end of the document. Initials, a mark, an X or other mark, and words such as Mom have all been upheld as valid when it was shown that the testators intended them to be signatures.

c) Each witness must either attest and sign the will or acknowledge his signature in the
presence of the testator-but not necessarily in the presence of any other witness. US: usually, the testator and all witnesses must sign in the sight or the presence of one another, but there

are exceptions. The UPC deems it sufficient if the testator acknowledges her or his signatures to the witnesses. The UPC does not require all parties to sign in the presence of one antoher. If anyone to whom, or to whose husband or wife, the testator has left property is a witness he will not be entitled to take under the will; but the Wills Act 1968 provides that if the will is duly executed without the attestation of such a person that attestation must be disregarded. A blind person cannot witness a will or codicil, as he cannot actually see the signature, but an illiterate person can be a witness, as he can see the signature even if he cannot read it. The testator must be in such a position that he can see the witnesses sign it if he wishes to do so and he must be aware of what they are doing, e.g. not so near death that cannot understand. By a rule of public policy (the forfeiture rule) no one who unlawfully kills another person may benefit under his will or intestacy. But because unlawful killings may sometimes be committed under circumstances where there is little moral blame (e.g. a mercy killing of a husband by his wife) the rigour of this rule was mitigated by the Forfeiture Act 1982, which provides that a court may, at its discretion, make an order with regard to any interest in the property devolving upon the offender which the justice of the case requires. US: if a gift is conditioned on the commission of an illegal act or an act that is legally impossible to fulfil, the gift will be invalid. US: PUBLICATION REQUIREMENT:the maker of a will publishes the will by orally declaring to the witnesses that the document they are about to sign is his or her last will and testament. Publication is becoming an unnecessary formality in most states, and it is not required under the UPC. A.1.1.4. Soldiers wills Soldiers, sailors, and airmen while in actual military service and seamen at sea have special privileges. They may make wills even though they are not of age, provided that they have attained the age of 14 years. They may make informal wills. Even an oral declaration will suffice provided that it is a serious statement or intention. A witness to a soldiers will may receive benefits under it. US: A nuncupative will is an oral will made before witnesses; it need not be formally attested. It is not permitted in most states, and where permitted statutes generally limit such wills to a small amount of personal property varying from $50 to $500 in value. Where authorised by statute, nuncupative wills are generally valid only if made during the last illness of the testator or in contemplation of death, and therefore sometimes referred to as deathbed wills. A.1.1.5. The classes of testamentary disposition Testamentary dispositions of freehold land are technically called devises. Disposition of personal property (including leaseholds) re called bequests or legacies. A gift may be general, specific, demonstrative or residuary: A general gift is a bequest of some money or thing not distinguished from all others of the same kind, e.g. a bequest of 100 or of a horse.

A specific gift is a gift of a specified thing which can be distinguished by the description in the will from all other things, e.g. I bequeath to X my mare, Daisy. A demonstrative gift is one of a sum of money to be paid out of a particular fund, e.g. 500 out of my 2.5.% War Stock. A residuary gift is a gift of the residue of the estate, or part of it, left over after all other gifts have been made and debts paid.

These distinctions are important because the nature of the gifts will determine whether they are liable to ademption or abatement. Ademption occurs when something which is subject to a specific bequest perishes between the time the will is executed and the death. The gift is adeemed. This doctrine could not apply to general legacies and it is established that it does not apply to a demonstrative gift, for it is deemed to be the intention of the testator to give effect to such a gift even though the fund from which it is to come has ceased to exist at the time of the death: demonstrative legacies, if adeemed, are turned into general legacies. Ademption of a specific legacy will also occur where the thing given has been substantially changed before the testators death. A mere change in name or form, however, will not lead to ademption. Abatement occurs where there is not enough property to satisfy all beneficiaries after the creditors of the deceased have been paid. In this case some of the beneficiaries must lose their rights, and their gifts abate (ie cease to take effect) in a specified order. Residuary gifts abate first and specific gifts last. If the residue is exhausted, general gifts are resorted to next: they abate proportionately, according to the value of each. Demonstrative gifts will not abate unless the fund out of which they are payable is itself exhausted: if that happens they will be treated for the purposes of abatement as if they were general gifts.

Lapsed gifts Where a legatee or devisee dies before the testator, the gift made to him lapses and the property so given falls into residue for the benefit of the residuary legatee. Lapses do not occur, however, in the following: a) Where there is a devise of an entailed interest and the devisee predeceases the testator but is survived by issue capable of inheriting the entailed interest. b) Where there is a devise or bequest to a child or remoter descendant of the testator, and the intended beneficiary dies before the testator, but leaves issue surviving the testator. Then, unless a contrary intention appears in the will, the bequest will take effect for the benefit of the issue. A.1.1.6. Revocation A will may be revoked either expressly or by implication. US: in order to revoke a will, the testator must have the same mental capacity as is required to make a will: he must be mentally competent.

Express revocation can only be effected if the instrument by which the testator purports to revoke is properly executed according to the formalities the Wills Act requires for the making of a will. The same rule applies to alterations or interlineations in the will: they must be signed and witnessed. US: a will may also be wholly or partially be partially revoked by a codicil, a written instrument separate from the will that amends or revokes provisions in the will. A codicil eliminates the necessity of redrafting an entire will merely to add to it or amend it. A codicil can also be used to revoke an entire will. The codicil must be executed with the same formalities required for a will, and it must refer expressly to the will. In effect, it updates the will because the will is incorporated by reference into the codicil. Implied revocation arises in three ways: 1) By the making of a subsequent inconsistent formal testamentary document which disposes of the whole property embraced by the original will. Thus, though it is usual for solicitors to insert in wills a clause, I hereby revoke all other wills and testamentary dispositions heretofore made by me, this is not strictly necessary; for provided that the second will does dispose of the whole property it automatically revokes the first. If such a clause is not inserted, the later will (or codicil) does not revoke the former will except in so far as it is inconsistent therewith. The rest of the former will remains effective. 2) By Burning, tearing, or otherwise destroying the will. This, however, only effects a revocation if there is both physical destruction and an intention to revoke by such destruction. Further, the destruction must be effected either by the testator or by someone in his presence who acts with his authority. Thus, if you accidentally throw your will into a wastepaper basket, and it is taken away and destroyed, it is not revoked. Evidence of the contents of such a will may be given (if it can be obtained) after your death. If a testator revokes his will, intending to make a new one, but then fails to make a new will or makes a will that is void for any reason, the original will remains valid. Here the revocation of the first will is regarded as being dependent on the validity of the later one. Intentional destruction of a will with the object of making a fresh one may, if such an intention can be proved, revoke the will from the moment of destruction so as to leave the maker intestate until the new one is executed. US: In some states, partial revocation by physical act of the maker is recognised. At no time can a provision be crossed out and an additional substitute provision written in. such altered portions require reexecution and reattestation. To revoke a will by physical act, it is necessary to follow the mandates of a state statute exactly. If the original copy of a will cannot be found after the testators death, it is generally presumed that the testator must have destroyed it with the intention to revoke it. 3) By marriage. Marriage contracted after the execution of the will revokes it automatically for most purposes. This rule does not, however, apply where the will is expressed to be made in contemplation of a marriage: where, therefore, a man made a will leaving everything unto my fiance, MEB, and then married MEB, the will was not revoked; for the form of disposition clearly contemplated marriage with MEB whom the testator did, in fact, marry. Where, after a testator has made a will his or her marriage is dissolved, annulled or declared void any devise or

bequest to the former spouse lapses; but the spouse may, nevertheless, make a claim for reasonable provision under the Inheritance Act 1975. In respect to deaths on or after 1 January 1996, in the event of any devise or bequest of property, on divorce or annulment of the testators marriage the property shall pass as if the former spouse had died. US: under common law and the UPC, divorce does not necessarily revoke the entire will: only those dispositions providing for the former spouse will be automatically revoked upon divorce or annulment. A.1.1.7. US: Rights under a will

A testator may disinherit his or her relatives and his or her spouse, albeit only in a few states. Therefore, a married person who makes a will generally cannot avoid leaving a certain portion of the estate to the surviving spouse. This is generally known as an elective share, and often amounts to one third of the estate. Beneficiaries under a will have rights as well. A beneficiary can renounce (disclaim) his or her share of the property given under a will. In addition, a surviving spouse can renounce the amount given under a will and elect to take the forced share when the forced share is larger than the amount of the gift (this is known as a widows [right to] election). The revised UPC gives the surviving spouse an elective right to take a percentage of the total estate determined by the length of time that the spouse and the decedent were married to each other. Although children usually may also be disinherited, most states provide that children born after the making of a will but before the death of the testator inherit as though there were no will, unless it appears that the testator intended otherwise. The vast majority of states have no specific limitations on charitable bequests.
A.1.2. Intestate Succession Intestacy is governed by the Administration of Estates Act 1925, as amended by various statutes. Wherever a person dies intestate it is provided that all his property is to vest in his personal representatives upon trust for sale. It must be realized that this trust for sale is only a practical device which makes distribution possible where there are a large number of beneficiaries. Its imposition does not mean that the property must be sold. There is a power to postpone sale indefinitely. Thus there may never be an actual sale; the property may remain unconverted when the personal representatives vest it, in its original form, in the person entitled to it. Even where there are numerous beneficiaries, the property need not be sold if it is possible to distribute it without turning it into money.

US: statutes of descent and distribution (intestacy laws), and in some cases dower and curtesy, all of which vary widely from state to state, regulate how property will be distributed among the heirs when a person dies intestate; if no heirs exist, the state will assume ownership of the property. Descent refers to the handling down of real property by inheritance on the death of an owner who dies intestate. Distribution means the allocation to heirs of the personal property of an individual who dies intestate after the payment of debts and charges against the state. These

laws are diverse and difficult to reconcile. The National Conference of Commissioners on Uniform State Laws has been unable to reconcile the laws of descent and distribution. The modern trend among the states has been to eliminate the distinction in the treatment of the inheritance rules for real and personal property, and the terms heir and next of kin are now used interchangeably to cover persons entitled to take both real and personal property. In community property states, the surviving spouse has a vested right in and automatically inherits one-half of the community property whether or not there is a will.
The statutory rules governing the distribution of intestates estates are based upon the assumption that people who die intestate would, if they had made a will, have wished to make provision for certain classes of near relations. Thus, the primary assumption is that people usually wish to provide for their children equally, and also to make provision for their widows or widowers during the remainder of their lives. It is equally true that after divorce or judicial separation people do not usually wish to benefit the divorced or separated spouse, and the law takes this also into account. Five main groups of people have to be considered: A.1.2.1. A surviving husband or wife a) If the intestate leaves no children and no parent or brother or sister of the whole blood, then the surviving husband or wife will be entitled to the whole residuary estate absolutely. For deaths after 1 January 1996, the spouse must survive the intestate for 28 days to qualify. residuary estate here means the entire property of the deceased, less the funeral and administration expenses, and any debts or other liabilities incurred by the deceased during his or her life. Surviving Children or brothers and sisters will ultimately only affect the rights of the surviving spouse if they attain the age of 18 years or marry before that age.

US: Dower and curtesy: strictly speaking the rules of dower and curtesy are not part of the law of descent and distribution. States which retain the common-law rules of descent and distribution and also the rights of dower and curtesy may disinherit a spouse from any interest in real estate on the death of the other spouse, except for the rights of dower and curtesy. Dower: dower is the interest that a wife has in her husbands real estate, but this only becomes effective on the death of the husband. Usually the widow has the right to the use or the right to the income from one-third of her husbands real estate for as long as she lives. More than half of the states

have abolished the right to dower. Curtesy: curtesy is the interest that a husband has in his wifes real estate effective on the death of his wife and provided a child has been born to the marriage.
b) If the intestate leaves children as well as the surviving spouse, then he or she has an absolute right to receive the sum of L125,000 (duty free and bearing interest until payment) from the estate, or from the proceeds of its sale. Of course, the payment of this sum, or indeed, of only a part of it, will often exhaust the entire estate; and there will be nothing for the children. Further, in all circumstances the surviving spouse is absolutely entitled to the personal chattels of the deceased. Moreover, the surviving spouse has a right to have the matrimonial home appropriated as part of his or her share of the residue. The surviving spouse is also entitled to the income produced by half the remainder of the residuary estate during his or her lifetime. By s 2 of the Intestates Estates Act 1952 a surviving spouse may, upon giving notice to the personal representatives, have the life interest converted to a lump sum. It must be realized that where there are surviving children, as well as the surviving spouse, the above provisions operate in favour of this, his or her immediate family, to the complete exclusion of all other relatives. c) If the intestate leaves no children, but leaves a surviving spouse and a surviving parent or parents or surviving borthers or sisters, then the surviving spouse is at present entitled to receive the sum of L200,000.and the personal chattels. Once more, of course, a smaller sum than this will normally exhaust the estate; but if there is any residue after these deductions have been made, then the spouse is entitled to one half of it absolutely.

US: Only if no children or grandchildren survive the decedent will a surviving spouse receive the entire state. Under most state intestacy laws and under the UPC, in-laws do not share in an estate. If a child dies before his or her parents, the childs spouse will not receive an inheritance on the parents death. When there is not surviving spouse or child, the order of inheritance is grandchildren, then parents of the decedent. These relatives are usually called lineal descendants. If there are no lineal descendants, then collateral hers (brothers, sisters, nieces, uncles of the descendant) make up the next groups to share. If there are no survivors in any of these groups most statutes provide for the property to be distributed among the next of kin of the collateral heirs.
A.1.2.2. Surviving children The term children here includes all children, whether legitimate, legitimated, adopted or illegitimate. Their rights may be summarised under the following heads: a) Where there is a surviving spouse as well as a surviving child or children. In the event that a residue remains after payment of the L125,000 to which the surviving spouse is entitled, the half of the residue to which income the surviving spouse is not entitled will be held on the statutory

trusts for the children. After the death of the surviving spouse the whole of the remaining residue will be held on the statutory trusts for the surviving child of children; in the case of a child who survives the intestate, but dies before the surviving spouse, his share will pass to his estate; provided, however, that such child must have acquired a vested interest before dying in order for a share of the deceaseds estate to pass to his own estate. Otherwise, his share falls into the common fund. b) Where there is a child or children, but not a surviving spouse the residuary estate is held on the statutory trusts for the child or children. Here residuary estate means the entire residuary estate as above defined. All children, of either sex, are entitled to equal shares in it. The following further points must be noted: i) Where a child dies before the intestate, leaving children of his own who survive the intestate, those children are entitled to represent him, ie his share of the state is divided between them.

US: if a will does not provide for how the decedents estate will be distributed to descendants of deceased children (grandchildren), or if a person dies intestate, then a question arises as to what share the grandchildren of the decedent will receive. Each state designates one of two methods of distributing the assets of intestate decedents. Under the per stirpes method of dividing an intestate share, a class or groups of distributees (e.g. grandchildren) take the share that their deceased parent would have been entitled to inherit had the parent lived. An estate may also be distributed on a per capita basis. This means that each person takes an equal share of the estate.
ii) Wherever anyone who is entitled to take upon intestacy is under the age of 18, the AEA provides that the statutory powers of maintenance and advancement to one or more of his children, or has paid him or her money for the purpose of marriage. These payments have to be taken into account in assessing the share, if any, to which the favoured child will be entitled upon the intestacy, unless the circumstances show that the intestate did not intend that result.

US: under intestacy laws, stepchildren are not considered kin. Legally adopted children are, however, recognised as lawful heirs of their adoptive parents. Whether an illegitimate child inherits depends on state statutes. In some states, intestate succession between the father and the child can occur only when the child has been legitimised by ceremony or acknowledged by the father; in some cases, such acknowledgement or recognition is only valid provided it is in writing. Under the revised UPC, the same rule applies to intestate succession between the child

and the mother. The US Supreme Court has allowed state illegitimacy statutes to stand, concluding that they serve legitimate state purposes. If the parents of an illegitimate child marry each other, the child inherits from both parents as though legitimate. A few states also grant inheritance to a child from his father when he has been adjudged in court to be the father of the child. Oregon, the most liberal state in this matter, treats illegitimates the same as legitimates under inheritance law.
A.1.2.3. Surviving parents of the deceased a) Where there are surviving children of the deceased his or her parents will receive nothing. b) Where there is a surviving spouse, the surviving parents will be entitled to share the half of the residue to which income the surviving spouse is not entitled; or if only one parent survives, he or she will be absolutely entitled to all of it. c) Where there is no surviving spouse and there are no surviving children, then the entire residuary estate will be divided equally between the surviving parents. Where there are surviving parents, brothers and sisters therefore have no claim. A.1.2.4. Surviving brothers and sisters of the whole blood a) Where there are surviving children, the surviving brothers and sisters will receive nothing. b) Where there is a surviving spouse and a surviving parent, the surviving brothers and sisters will receive nothing. c) Where there is a surviving spouse, but no surviving children and no surviving parents, subject to the right of the spouse to L200,000, the personal chattels, and half of the residue, the remaining half of the residue will be held on the statutory trusts for the surviving brothers and sisters. d) Where there is no surviving spouse, and there are no surviving children, and no surviving parents, the surviving brothers and sisters will be entitled to the entire residuary estate. Provided that at least one of these brothers or sisters of the whole blood acquires a vested interest all other relatives will be excluded. Nephews and nieces represent borthers and sisters who predecease the intestate, in the same way that grandchildren represent children. A.1.2.5. Surviving relations of remoter degree If any relatives included in categories 1-4, above, survive the deceased, provided that at least one of them takes a vested interest, he or they exclude or relatives of remoter degree. But failing the survival of relatives included in categories 1-4, then such relatives are entitled to take according to their classes in the following order of priority (each class excluding other classes, according to that order). i) Brothers and sisters of the half blood, upon the statutory trusts.

US: there are different rules among the states concerning whether

collateral relatives of the half-blood (such as a half-brother) share equally with collateral relatives of the whole blood. Most states provide that there is no distinction and that relatives of the half-blood receive the same treatment as relatives of the whole blood. The other states limit the inheritance of relatives of the half-blood so that either (1) they take half as much as collateral reltaives of the whole blood, or (2) relatives of the whole blood receive inheritances in preference to relatives of the halfblood.
ii) iii) iv) Grandparents Uncles and aunts who are brothers or sisters of the whole blood of a parent of the intestate. Uncles and aunts who are brothers or sisters of the half blood of a parent of the intestate.

No one can be entitled to benefit upon an intestacy unless he either falls directly within classes 1-5 above, or represents some person who would have done so had he or she lived. The rules apply in cases of partial intestacy as well as cases of total intestacy as well as in cases of total intestacy. Partial intestacy may arise where, for instance, a testator only disposes of part of his estate in his will, thus dying intestate as to the other part. Where a person dies leaving no relatives within the prescribed categories the estate passes to the Crown absolutely; but in accordance with the existing practice, the Crown may provide for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision, out of the property.

US: if after the lapse of a certain time no heirs claim the estate of a deceased person, it passes to and becomes the property of the state (or another unit of government). This is the doctrine of escheat. It exists in all fifty states, but the time limit in which after discovered heirs may bring proceedings in order to recover escheated property varies from three to seven years.
It must be added that in cases of divorce or judicial separation where one spouse dies intestate the property will devolve as if the other party had been dead at the time of the intestates decease; this accords with the general policy of the AEA to give effect to presumed intention. The Inheritance Act 1975 may, however, be invoked. A.1.3. Family Provision The Inheritance (Family Provision) Act 1938 permitted certain dependants of deceased people to apply for an order of the court to make reasonable provision for them from the deceaseds estate if he, by his will, had failed to provide it. The law on this matter is now governed by the Inheritance Act 1975. Where a person dies domiciled in England and Wales and is survived by a wife or husband, a former spouse who has not remarried, a child, any person who was treated by the deceased as a child of the family in relation to any marriage of his, or any person who immediately before the death of the deceased was

being maintained by the deceased (a dependant), may apply to the court for an order on the ground that the disposition of the deceaseds estate effected by his will or the law relating to intestacy is not such as to make reasonable financial provision for that person. It has been held that wife includes a wife of a legally recognised polygamous union. Since 1 January 1996, a claim may be made by any person who during the whole period of two years ending immediately before the date when the deceased died was living in the same household as the deceased and as husband or wife of the deceased. By s 4 a time-limit of six months from the date of taking out of representation of the estate is normally imposed upon the making of applications. There are stringent provisions designated (or designed?????) to prevent the deceased from defeating the objects of the Act. The order may be made under the following circumstances: -In the case of the surviving spouse, the test is reasonable financial provision, whether or not the provision is needed for the spouses maintenance. -For other dependants, the provision must be such as would be reasonable for the applicants maintenance. The court applies an objective standard, based on the applicants resources and needs, the obligations of the deceased to the applicant, the size of the deceaseds estate, and any physical or mental disability of the applicant. Further guidelines are laid down in relation to specific applicants. The court order for provision to be made out of the net estate of the deceased can take several forms, among them periodical payments, lump sum payments and transfer of property.

A.2.

Administration of estates

A.2.1. Personal Representatives A.2.1.1. The nature and purpose of representation Estates are usually subject to two principal classes of claims; the claims of beneficiaries on the one hand and of creditors on the other. These claims often conflict and yet they have, somehow or other, to be met. English law interposes the personal representatives between the claimants. It is their duty to administer the estate by paying creditors, collecting debts and distributing the assets to the people entitled under the will or intestacy. The general rule is that all the property which the deceased owned at his death vests in these representatives. A.2.1.2. The duties of personal representatives The personal representative of a deceased person shall be under a duty to: a) Collect and get in the estate of the deceased and administer it according to law b) When required to do so exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration to the court c) When required to do so by the High Court, deliver up the grant of probate or administration to that court. personal representatives will incur no liability and the expenses of administration will be borne by the estate provided that they administer the estate properly

A.2.1.3. The classes of personal representatives Personal representatives who are appointed by a testator in his will are called executors. An executor is known in law as a fiduciary or legal (only in the US?) representative of an estate. A testator may appoint any number, but probate will not be granted to more than four executors. They are usually appointed expressly; but sometimes an appointment may be implied, as where a testator nominates a particular person to pay his debts. In the latter event the executor is known technically as an executor according to the tenor.

US: the legal representative must be as honest, diligent and vigilant in administering the affairs of the estate as a reasonably prudent businessman would be. He is not, however, an insurer of the assets of the estate. The compensation of a legal representative is fixed by law in each state and varies from state to state. The compensation is awarded by the court and is known as a commission. Rates of commission range from 1-1/2 to 5 per cent of the total size of the estate.
In the event that a person dies intestate, the court will appoint a personal representative who is known as an administrator. Even though there is a will, administrators may sometimes have to be appointed as well. Firstly, where there is a will but for some reason there are no executors, or the people named as such decline to act, someone must be appointed to act as personal representative. These people, when appointed, are known as administrators cum testamento annexo (with the will annexed). Secondly, minors cannot act as representatives, and it follows that if a minor is appointed by will there must be someone to act for him; such a person is known as an administrator durante minore aetate (during minority). Thirdly, if there is a dispute about the validity of a will, clearly an executor appointed in the will cannot take office. In this case an administrator pendente lite (during the litigation) has to be appointed. An administrator of this latter class may proceed with the administration of the estate; but he must not distribute the property.

US: the names in Latin for the different classes of personal representatives (in the US a.k.a. legal representatives) do not seem to be used in the United States.
Where an executor dies in the course of administration his own executor will take his place. If, however, he dies without appointing an executor there is no one to succeed him, and an administrator de bonis non administrates (of the unadministered estate) must therefore be appointed. Where an administrator of the estate of an intestate dies a new administrator must be specifically appointed. A.2.1.4. Probate and letters of administration The right of the executor to dispose of the estate is not fully established until he has obtained a grant of probate of the will. The mere existence of a will may mean nothing, for it may not be a valid will, or it may not be the last will. Probate is official acceptance of the authenticity of the will and official sanction of the executors right to act. The word probate is, however, often used to cover both probate AND letters of administration. Probate may be obtained in two ways; in common form or in solemn

form. The former method is more usual. The process begins when the Executor approaches the Registry of the Family Division of the High Court and requests to open probate, i.e. to start the succession process. The procedure is for the executor to apply either to the principal registry of the Family Division of the High Court at Somerset House or to a District Registry. He must produce the will, an affidavit called the executors oath, and an Inland Revenue Account. The oath is in effect a promise by the executor to administer the estate according to law and to follow the wishes of the deceased. The account contains particulars of the property comprised in the estate, which enable the Inland Revenue Commissioners to assess the estate duty payable. If these documents are in order, estate duty is paid, there are no challenges and the court considers the will a valid will, the Court will probate/prove the will //probate will be granted and a copy of the will will be handed to the executor; the original is retained at the registry. Probate in common form is granted much as a matter of course. If, however, there is any serious dispute, for instance, as to the validity of the will, probate in solemn form will have to be obtained, which entails the hearing of evidence and amounts in effect to an action. Letters of administration are granted in much the same way as probate. An heir (usually a close relative of the decedent) will approach the Family Division of the High Court. Once he is appointed, the administrator must present a statement saying there is no will together with the Inland Revenue Account, which will be used to calculate the estate duty payable. There is, however, one substantial difference in the procedure. An executor is a person in whom the testator has reposed confidence, and administrator is not. therefore, the High Court may require one or more sureties (in practice usually insurance companies) to make good, within any limit imposed by the court, any loss which any person interested may suffer in consequence of a breach of his duties by the administrator. In the past, the administrator had to enter into an administration bond whereby the administrator undertook to pay the Principal Registrar double the gross value of the estate if they failed to administer it according to law.

US: probate procedures vary, depending on the size of the decedents estate. i) Informal probate proceedings: for smaller estates, most state statutes provide for the distribution of assets without formal probate proceedings. Faster and less expensive methods are then used, such as affidavits or forms (e.g. to transfer title to cars). A majority of the states also provide for family settlement agreements, which are private agreements among the beneficiaries. Once a will is admitted to probate, the family members can agree to settle among themselves the distribution of the decedents assets. A court order must be issued, however, in order to protect the estate from future creditors and clear title to the assets involved. The use of these and other types of summary procedures in estate administration can save time and money.

ii) Formal probate proceedings: for larger estates, formal probate proceedings are normally undertaken. The executor institutes in a probate court a probate proceeding: an application to establish a document as the authoritative, final, and official will of the deceased person. The probate of a will is a judicial proceeding in which the heirs receive notice that the will has been filed in court and that the court will be asked to establish it as the valid will of the decedent. The probate court supervises every aspect of the settlement of the decedents estate. The heirs are required at this time either to consent to or to oppose the probate. If the probate is not contested, the judge of the probate court will hear the testimony of the witnesses to the will concerning its proper execution; then, if the will complies with the statutory requirements, it will be admitted to probate. If the will and the probate proceedings are contested, the court conducts a hearing and decides whether or not there are valid legal objections to the will. In some situations (such as those involving the appointment of a guardian for a minor or the creation of a trust) more formal probate procedures cannot be avoided. Formal probate proceedings may take several months to complete, and as a result, a sizable portion of the decedents assets (up to perhaps 10 per cent) may go toward payment of fees charged by attorneys and personal representatives, as well as court costs. Interpreting and construing wills: whenever he or she desires, an interested party may ask the probate court to construe and interpret a will. In a construction proceeding it is the courts duty first to examine the will and then, if possible, to determine its meaning. In some cases the court also takes evidence to aid in construction of a will. Property transfers outside the probate process: commonly, beneficiaries under a will must wait until the probate process is complete to have access to money or other assets received under a will. For this and other reasons, some persons arrange to have property transferred in ways other than by will and outside the probate process.
A.2.1.5. Who may be appointed Probate will not be granted either to a minor or to more than four executors. It is usual, however, to appoint more than one, for it is open to an executor to refuse to act.

The appointment of administrators is within the discretion of the court, and Rules of Court prescribe an order of priority of choice. This order roughly follows the order of priority of persons entitled to take upon an intestacy; though sometimes a creditor may be appointed. The maximum number of administrators is four. A.2.1.6. The powers and liabilities of personal representatives Personal representatives are given absolute powers of disposing of the property for the purpose of administration. By law personal representatives are officially allowed one year from the death in which to wind up the estate, but the courts will not tie them strictly to this period. Thus if any creditor or beneficiary complains that he has suffered on account of delay in distribution beyond the executors year, he will have to prove that this delay was the result of some neglect on the part of the personal representatives. The liability of personal representatives is in general limited by the value of the estate. They are, however, in a similar position to trustees, and if they do anything unlawful, they may be personally liable. A.2.2. Administration of Assets Having described the nature of personal representatives we are now in a position to consider their duties. They generally administer the estate themselves (usually through a solicitor) without interference. If, however, someone interested in the estate is dissatisfied with the administration he may, by an administrative action, apply for the administration by the court. If the estate is solvent it will then be administered in the Chancery Division of the High Court. If it is insolvent it may be administered either in the Chancery Division or in the Bankruptcy Court. The four main duties of personal representatives are: 1) To collect all debts due to the estate 2) To pay the debts and satisfy the liabilities of the estate 3) To convert unauthorised investments into authorised ones; though they almost invariably have power to postpone this. 4) To distribute the remainder of the property according to the will or to the rules of intestacy. The estate may be insolvent, ie not large enough to satisfy all creditors in full: in this case, of course the beneficiaries can hope for nothing. On the other hand, though it is solvent (ie the creditors can all be satisfied) it may be insufficient to meet the claims of all beneficiaries. In either case rules of law have had to be provided to govern the conflicting rights of claimants, so as to determine who will be paid and who will not. The personal representative cannot ignore knowledge of just debts owed by the deceased to other persons. After claims are presented, the legal representative, must investigate them and satisfy himself that they are valid. If he doubts the validity of a claim, he will have to present the matter to the probate court.

US: the legal representative not only takes the assets into his possession but he must also obtain full information regarding the assets. He should prepare a complete inventory of the decedents assets as soon as possible. The legal representative of the estate must open a bank account in the name of the estate and must transfer the decedents bank accounts to his own name, as executor or administrator. The problems of taking possession of assets are many. In reducing estate monies to his possession, the legal representative must keep the funds and the property received separate from his own personal funds and property. He must make sure that all funds are deposited in his name as executor or as administrator. The legal representative must keep a record of all receipts and disbursements in order to be prepared to make a final account of his stewardship. In the case of sizeable estates the legal representative may employ a bookkeeper or an accountant to keep the books for him.
A.2.2.1. Insolvent estates Where the estate is insufficient to meet the claims of creditors in full the following rules apply: 1) Funeral expenses, testamentary expenses and the costs of administration have first priority. 2) Debts have next priority. They have to be paid in a prescribed order: a) Preferred debts rank first. Examples of these are arrears of rates and taxes for any one year. b) Ordinary debts: these are debts which are neither preferred nor deferred. c) Deferred debts: examples of these are claims for money lent by a husband to his wife for business purposes and by a wife to her husband for any purposes. (DEBTS TO BE PAID ON INSTALLMENTS????) Secured creditors are also entitled to special rights. If the estate is insufficient to satisfy the claims of all creditors in any one class these claims must be usually cut down proportionately, according to their respective accounts. A.2.2.2. Solvent estates Even though an estate is solvent there may not be enough to pay the beneficiaries in full. The creditors must of course be paid somehow. It is therefore essential to know the order in which the beneficiaries are to lose their rights so that the creditors may be satisfied. The rules governing the order in which debts are payable are the same as those applying in cases of bankruptcy. Indeed, the only difference from the order of payment in bankruptcy is that the personal representatives have to pay the funeral and testamentary expenses before all other debts. The funeral, testamentary and administration expenses and the debts are to be paid out of the following funds in the following order:

a) First, resort is to be had to any property in the estate which is undisposed of by will, subject to the retention of a fund to meet pecuniary legacies. b) Next, to any property included in a residuary gift, subject to the retention of a fund to meet the balance of the pecuniary legacies. c) Next, to property specifically appropriated by the testator for the payment of debts. d) Next, to property left by the testator subject to a charge for the payment of debts. e) Next, to the fund, if any, retained to meet pecuniary legacies. f) Next, to property specifically devised or bequeathed, rateably, according to value. g) Finally, to property appointed by will under a general power, rateably, according to value. This class of property comes last because, in a sense, it is not really the testators own to dispose of, though he is free to do so it comes to him from elsewhere. It is provided that this order of application may be varied by the will of the deceased. Thus if a testator shows a clear intention that a special fund of Lx shall be set aside for payment of debts in exoneration of all other funds, this fund will be liable first, even before property in category (a). Such, then, is the order in which beneficiaries are liable to lose their interests. It only remains to be noticed that it may sometimes happen that an interest of a lower category is disposed of in favour of creditors before an interest of a higher category. In such a situation the doctrine of marshalling of assets comes into play. This means that a beneficiary who loses property of a lower category to which he is entitled may recoup his loss by claiming to be indemnified out of undisposed property to which someone else higher on the list is entitled. The doctrine of marshalling is thus an application of the principle that, whatever the method of distribution, the prescribed order will always be observed. A.2.3. Transfer of Property to Beneficiaries The final duty of personal representatives is to transfer the appropriate property to the appropriate business. The rule is that the representatives must assent to the transfer. In respect of any property other than land the assent requires no special formality, and it need not be in writing; it is often the case, however, that the assent will be effected in writing (in the form of e.g. a receipt or a written statement) so as to keep record.Shares may be transferred by executing a transfer to the beneficiary. Where, however, it is desired to transfer the legal estate in land the assent shall be in writing, signed by the personal representative, and shall name the person in whose favour it is given. An assent not in writing shall not be effectual to pass a legal estate. This requirement must always be satisfied; and it is of cardinal importance in conveyancing. The reason for this is that a purchaser from the beneficiary who has obtained such an assent need not, and must not, examine the will in order to assume himself that the vendor is entitled. All he needs to see is the assent.

US: today, an important aspect of estate administration is the filing of estate tax returns. There are two basic kinds of inheritance and estate taxes: state and federal. State and federal income tax returns are relatively straightforward documents

compared with inheritance and estate tax returns. Estate tax returns contain many details, such as schedules of real estate, stocks and bonds, mortgages and so on. In an estate tax proceeding, the appraisal of the assets is the basis for the tax on the property. If the decedent died after 1986, a federal estate tax return does not have to be filed unless the gross value of the estate exceeds $600,000. The legal representative of an estate may employ agents and others to assist him with the administrative work of the estate and may employ attorneys to advise them about his rights and duties. In most cases, those employed by the legal representative for this purpose are entitled to compensation from estate funds. Whenever the legal representative feels that a charge for legal services is not property, he may ask the probate court to determine the amount to be allowed to the representative for counsel fees. Distribute the estate to beneficiaries: after all the foregoing steps have been taken and after all inheritance and estate taxes have been paid, the legal representative is ready to distribute the assets of the estate to the beneficiaries. When a federal estate tax return is required, the Internal Revenue Service usually takes a minimum of one year to audit it. This year, added to the 9 months allowed for preparation and filing of the federal estate tax return, means that estates of more than $600,000 are very difficult to distribute completely before at least two years after the decedents death. Judicial approval of a legal representatives accounts: after he has completed his duties, the legal representative should file with the probate court an account setting forth all assets that he has received, all debts and administration expenses that he has paid, and showing the balance on hand for distribution. The accounting is the final act of the legal representative; it discharges his responsibility to the estate. In this proceeding, he accounts for his acts in administering the affairs of the estate, and the court directs the manner in which the assets remaining in the legal representatives control are to be distributed. Settlement of Estate without Accounting: where there are no disputes between the parties, an estate may be settled by written agreement rather than by an accounting proceeding. In such a case, the executor sets forth in the agreement what he has accomplished. Then the consenting parties acknowledge receipt of their respective

distributive shares and release and discharge the legal representative from all legal liability and responsibility for his acts.

Introductory clause contains: 1) Name, address, and age of the testator. 2) May include a revocation clause. 3) Statement as to the testamentary capacity of the testator. The body of the will contains: 1) 2) 3) 4) 5) Dispositive clauses. They are compulsory. Bequeath and devise May set up a trust and appoint a trustee May designate a guardian for his or her children. May (should) appoint an executor. May contain funeral arrangements

Signature 1) It is compulsory 2) Publication may be required 3) Signature of the witnesses attesting to or acknowledging the signature of the testator or testatrix.