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Post Grant Practice Notes

LPC Law Notes > Private Client Notes

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Wills & Administration of Estates LPC Exam Revision Administration: Post Grant Practice Duties of a Personal Representative The key duty of a PR is to 'collect and get the real and personal estate of the deceased and administer it according to the law' (i.e. collect assets the deceased was entitled to at death, pay debts and distribute the residue). These duties must be performed with due diligence and PRs have a duty to take reasonable steps to preserve the value of the estate and to carry out the process with 12 months from the date of the death.

Breach of Duties A breach of duty means the PR is personally liable for any loss. The PRs must exercise reasonable care and skill, having regard to special knowledge and experience, professions and the reasonable expectations of the PR. Action can be taken by a creditor or beneficiary who has suffered loss as result of the breach of duty.

Powers of a Personal Representative The PRs have certain powers to carry out their duties, the source of their powers can come from statute and/or the deceased's will (if there is one). PRs are in a fiduciary position and must act in the utmost good faith and must not profit from their position.

Statutory Powers Power to Invest

This allows PRs to invest and hold assets for the foreseeable future rather than distribute them. This general power is found in s.3 TA 2000 and states that the trustees have the power to extend as if they were absolutely entitled to the assets. This includes acquiring freehold and leasehold land (s.8) PRs must have regard to 'standard investment criteria' (s.4) in relation to suitability and diversity. And unless they think it unnecessary, they must obtain proper advice.

Power to Appropriate

Power of Maintenance

PRs can appropriate an asset - i.e. choose which assets in an estate to meet the beneficiary's entitlement. This power can only be used if it does not involve prejudice, the beneficiary must consent and the value of the asset must be taken at the date of transfer rather than death.

PRs can deal with income generated by assets held on trust. For deaths after October 2014 trustees have complete discretionary power to apply income generated by trusts for minor beneficiaries' maintenance, education or benefit. Trustees must accumulate the balance of income not applied. If the beneficiary is entitled to the capital at an age after 18, the trustees must pay the income to the minor.


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