When someone dies, their estate has to be dealt with. Someone has to take charge of gathering in their assets (closing bank accounts, selling shares and property) and paying their liabilities (outstanding bills, funeral costs and paying off loans and mortgages). Once that has been done, the estate is divided between the beneficiaries – either those people named in the will, or (if there is no will) those people entitled to inherit under the intestacy rules. In order to undertake this role, there will need to be a Grant of Representation to the estate.
So, who should take on this role and apply for the Grant? If there is a will, the executors will be named and will make the application. If there is no will, then the person who is entitled under the intestacy rules will apply for a Grant. This will be the person who is first in line to inherit under the rules – for example, if a person dies leaving a spouse, it will be that spouse.
Difficulties sometimes arise where the person who should apply for the Grant is not able to do so. For example, if there are two or more people who are equally entitled to a Grant (for example because those with the best right under the intestacy rules are the children of the deceased and there are a number of them) and they cannot agree between themselves who should take the Grant, or if the person named as executor wishes to start Court proceedings against the estate (for example under the Inheritance (Provision for Family and Dependants) Act 1975).
In these situations, the best solution is to find someone else who can take the Grant. Understandably, people are sometimes reluctant to do this – particularly where they have been named in a Will and feel a strong moral obligation to carry out the wishes of the deceased. In some cases, they feel very aggrieved that someone else (such as a sibling) is unwilling to let them get on with the job, and they may not wish to ‘give up’ by simply appointing someone else.
One way that I often deal with these types of situations is to appoint an independent administrator. This is often a solicitor who can take over the administration of the estate, and carry out the work quickly and efficiently. There is a cost to dealing with matters this way, but it is usually less than the cost of contested Court proceedings (and anyway, many personal representatives will appoint solicitors to deal with the practical work involved in administering the estate so the costs would be incurred in any event).
The big advantage of an independent administrator is that it minimises the emotional tension. Dealing with an estate can bring up long held feelings and emotions which people feel able to air because the person who may have prevented that is no longer present. For example, a second wife and children from a first marriage may not like each other, but may have managed to suppress this whilst the deceased was alive. On his death, there is no need for further restraint. In times of emotional stress, people often say things that they do not mean or may not have said in their more rational moments. This is particularly true if they feel that the contents of a will are unfair.
Judges do not like to be placed in a position where they are forced to choose between two people who are arguing over who should take a grant, and will often feel more comfortable about appointing someone independent. It is often a sensible course, so that the administration can progress. Ultimately, it must be in everyone’s interests to have the estate dealt with so that those bereaved can move on with their lives.