Intestacy, Administration & Found Wills

In cases such as the one relating to Cass Elliot’s where a Will is found after a period of time – I was asked what happens to an estate that has already been distributed according to intestacy rules. In that case the heirs of the named beneficiary brought action against the lawyers who held the Will. However a Will that is found following the administration of an estate could take precedence.  Therefore the proceeds of the estate would have to be traced & redistributed the beneficiaries named in the Will.

Executors appointed by a will and administrators appointed by courts are both considered to be legal personal representatives.

Executors have traditionally occupied a better position than administrators, as the Will maker appointed the executor their authority should be unlimited, whereas administrators are appointed by Courts their authority should be more limited.

Essentially they both administer the deceased estate and have certain duties to perform in respect of the  estate.

Where there is no valid will, the responsibilities of the administrator depend entirely on obtaining the grant of letters of administration. Once letters of administration are granted, the administrator’s duties are the same as those of an executor.The responsibilities of a legal personal representative generally begin with arranging the funeral.

The beneficiaries have no interest in the deceased property until the legal personal representative is in a position to distribute the estate; before this occurs a beneficiary has a right to sue the legal personal representative if they fail to administer the estate diligently and correctly. A personal representative must make reasonable efforts in all the circumstances to wind up the estate promptly.

The legal personal representative must collect the assets of the deceased and distribute the proceeds according to the directions contained in the will or the intestacy rules.

The debts of the deceased must be paid before any distribution is made; detailed accounts and records of the administration of the estate must be kept. A beneficiary has the right to inspect and copy any documents or accounts relevant to that person’s interest in the estate.

If the personal representative follows the advice of the court he or she is protected from any claim by a beneficiary or creditor arising from action or inaction observed in accordance with the court’s direction.

In order to secure legal protection, the legal personal representative must disclose to the court all relevant information.

A person who administers without seeking the advice of court is not protected merely because he or she is relying on legal advice. Legal personal representatives are generally entitled to be indemnified out of the estate, as to the costs of administration. In particular, an executor or trustee who approaches the court for advice shouldn’t have to personally pay costs.

In the event that a Will is found among the papers of a person who was believed to be intestate the actions of the administrator would be protected if they have acted reasonably and in good faith and have sought and followed the advice of the Court.

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