Estate Management: How to manage the estate of someone who has died.
“There is something about wills which bring out the worst side of human nature. People who under ordinary circumstances are perfectly upright and amiable, go as curly as corkscrews and foam at the mouth, whenever they hear the words ‘I devise and bequeath.'” So says Dorothy L Sayers in her book, Strong Poison.
Who is responsible for the management of the deceased’s estate?
The person tasked with this responsibility is known as the personal representative of the deceased.
If a valid will exists then this person is usually named and is given the title of Executor. However, if no able person is named or no will exists, letters of administration can be applied for. The personal representative in this scenario is given the title of administrator.
While letters of administration require some extra work and extra expenses in terms of insurance, the role of administrator and executor create similar obligations.
It is worth noting that a personal representative can relinquish or reserve their entitlement to manage a deceased’s estate. Thus, they cannot be forced to take on this role and can refuse to take on the burden.
It is therefore typically a good idea to discuss with the person you intend to name in your will as executor as to whether or not they are willing to perform the role.
The role of a personal representative?
A person cannot simply present a will and declare their absolute right to property based on its content. The personal representative (often more than one) is the only one entitled to disperse the assets in the estate of the deceased. With this significant power comes a number of major responsibilities.
The first is an extremely logical one, namely arranging the funeral of the deceased.
Secondly, formal authority to manage the estate must be applied for. Applications can be sent to the Cork District Probate Office or alternatively to Dublin Central Office.
Control of the monies:
Once the authority to manage the estate has been granted, the personal representative is then tasked with the responsibility of collecting in all the assets in the estate, paying the debts due (such as revenue, outstanding utility bills and funeral costs) and then distributing the estate to the beneficiaries as determined by law (and the will if the individual dies testate).
It is important to note that disputes are common and can vary from arguments over the precise interpretation of a sentence within the will to claims of legitimate expectation, that is, scenarios where an individual has lived and care for an elderly loved one without remuneration on the expectation that they will inherit the family home in time. The principle of ‘proprietary estoppel’ means that if you have relied on a promise made to you that you will gain a particular asset upon the death of a person and the person then makes a will effectively breaking the promise, the will can be challenged in the courts. Additionally, a will may be declared invalid if the person who wrote it was pressurised, coerced or forced into writing their will in a particular way by another party. Duress involves proving coercion. Duress and undue influence can occur where vulnerable, elderly people may rely heavily on someone, perhaps a son or daughter, to help them every day. In these scenarios, the elderly person can be coerced into leaving their estate to that person. Undue influence is one of the reasons why a solicitor should insist that everyone other than the legal advisors leaves the room when the instructions for the will are being taken and when the will is being executed.
Naturally, the death of a loved one is a traumatic time and having to manage the estate they left behind can be a major additional stress. Many solicitors however are well practiced at dealing with these issues and can advise about making the process as stress free as possible.