We are increasingly asked to act as an Independent Administrator, but for those who have not heard the term before, what is an Independent Administrator, and when would one be needed?
What is an Independent Administrator?
When a person passes away, how their Estate is divided, and who has the legal responsibility for carrying out their wishes, is dictated by any valid Will which they have put in place during their lifetime, or if there is not a Will by the Rules of Intestacy (click here to see our Blog on the Rules of Intestacy).
What is included in a deceased’s Estate?
A person’s estate is everything that comprises their net worth. This includes assets such as all property and land owned, their possessions such as jewellary and vehicles, their financial assets such as cash, savings, and investments. Essentially, it encompasses everything that the individual owns and even includes items which may carry no significant financial value such as crockery, clothing, and houseplants.
If there is a valid, Will in place, this should appoint one or more persons to act as Sole Executor or Executors of the Estate. In cases where a person has died intestate, Rule 22 of the Non-Contentious Probate Rules 1987, gives an order of priority for those who are entitled to apply administer the Estate.
The authority of an Executor stems from the Will, however, where is a proposed Administrator, they must be appointed under a Grant of Letters of Administration before they have the authority to act.
What is the Grant of Letters of Administration?
A Grant of Letters of Administration is an official document that is provided by the Probate Registry and gives authority to a person or persons to act as the administrator of a deceased’s estate in accordance with the law.
A Grant of Letters of Administration is required when an individual dies without a will. This is known as dying intestate.
An Independent Administrator is someone appointed by the Court to act as Personal Representative of the Estate in place of the named Executor or persons entitled to apply to be Administrator.
When is an Independent Administrator needed?
In certain circumstances, disputes can arise either between named Executors themselves, between beneficiaries and Executors, or between proposed Administrators. There may be other reasons why the named Executor cannot, or should not, act in relation to the Estate.
Whilst there are many reasons why an Independent Administrator may need to be appointed, let’s look at a few possible scenarios below.
- Executor Disagreement or Conflict of Interest
Possibly one of the most common scenarios and one which our contentious probate department are increasingly coming across, are disputes between the named Executors. This could be disputes about the valuation of assets, disputes about how those assets should be dealt with or disputes about things alleged to have taken place during the deceased’s lifetime involving one or more of the Executors.
Here, disagreement between Executors can become so great that they are unable to properly put the needs of the Estate first to ensure the proper administration of the Estate for the benefit of the beneficiaries. Typically, the Estate will then be at an impasse and matters cannot move forward. Often, the only way that both Executors will agree to matters moving forward is if they both step aside and allow an Independent Administrator who has no personal knowledge or connection to the Estate to act instead. This will usually be a professional experienced Solicitor who will then be appointed by the Court to take over control of the Estate and complete the Estate administration.
If one or both of the Executors does not agree with this course of action, then an application can be made under to the court under Section 50 Administration of Justice Act 1985 for an Order that one or both of the Executors is removed from their role, and replaced with an Independent Administrator.
- Dispute about the Validity of a Will
If a dispute has arisen about the validity of the Will, then Court proceedings may be issued to determine the validity of one or more Will. This could occur where there are allegations that the Will maker lacked capacity to make the will, allegations of forgery, fraud or an allegation that the legal formalities for making a Will have not been met, in accordance with Section 9 of the Wills Act 1837.
During the litigation, it may be necessary for steps to be taken to administer the Estate to protect and preserve the assets . If the parties involved cannot agree, it may be necessary to apply to the Court under Section 117 Senior Courts Act 1981 to appoint the Independent Administrator. Here the Independent Administrator would be appointed for a limited period to protect and preserve the assets of the Estate, until the final Order is made by the Court. Depending upon the outcome of the proceedings, the Independent Administrator may be asked to continue to act under a further Grant issued under Section 116 Senior Courts Act 1981 to continue and conclude the Estate administration.
- The Executor is considered unfit to act or the Estate is at risk
This situation could arise if, for example, the named Executor in the Will has been declared bankrupt, suffers from mental ill health or is alleged to have had improper financial dealings during the lifetime of the deceased.
So how is an Independent Administrator appointed?
Well, if the parties are in agreement that there is need for an Independent Administrator, they can make an application jointly to the Court for the administrator to be appointed.
The application must be accompanied by details of the proposed Independent Administrator, their experience and suitability, likely charges and a consent signed by the proposed Independent Administrator with their agreement to take on the role.
The Independent Administrator then has a duty of care. They must act in good faith, fairly and honourably. They must be seen to be impartial and independent in their management of the Estate for the benefit of the beneficiaries.
An Independent Administrator is usually an experienced Solicitor, who has the ability and capacity to take over the Estate administration and bring the matter to a conclusion. They must have no connection to the parties or the Estate and will have no interest in the Estate itself, leading them to be completely independent.
It is important to identify as early as possible whether an Independent Administrator is needed to minimise costs being incurred and to enable the Estate to be properly administered in a timely fashion.
Contact Us
Taking expert advice straight away is crucial so that the right evidence can be gathered and the beneficiaries of any lost Will do not lose out. If you need any further advice or assistance, please call us.
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
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About the Author
Liz Heads our busy Private Client Department. She is a qualified Trusts and Estates Practitioner having attained a Distinction in the STEP Diploma in Trusts and Estates Administration. She specialises in offering advice in relation to Wills, Probate, Trusts, Lasting Powers of Attorneys and Court of Protection Deputyship applications and is a member of Solicitors for the Elderly.
Liz is a member of the Association of Contentious Trust and Probate Specialists (ACTAPS). She deals with contentious probate cases, including challenges to the validity of Wills on the basis of fraud, irregularity, incapacity or undue influence, removal of Executors and Trustees and claims under the Inheritance ( Provisions for Family and Dependants) Act.
She recently represented the Claimant in the reported case of The British University in Dubai v Ebrahimi [2021] EWHC 757 (Ch) (26 March 2021), in which she successfully proved that a will, which had already been admitted to probate was a fraud ensuring that the estate was to be distributed in accordance with an earlier valid will.
Liz loves the variety that life as a Private Client lawyer brings. When she’s not working or studying, Liz loves to spend time with her husband and their young children which leaves little time for anything else!
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
