Administration of an estate on death
Encyclopedia
In English law
, Administration of an estate on death arises if the deceased is legally intestate. In United States
law, the term Estate Administration is used.
Where a person dies leaving a will
appointing an executor
, and that executor validly disposes of the property of the deceased within England and Wales
, then the estate will go to probate
. However, if no will is left, or the will is invalid or incomplete in some way, then administrators must be appointed. They perform a similar role to the executor of a will but, where there are no instructions in a will, the administrators must distribute the estate of the deceased according to the rules laid down by statute and the common trust.
Certain property falls outside the estate for administration purposes, the most common example probably being houses jointly owned that pass by survivorship on the first death of a couple into the sole name of the survivor. Other examples include discretionary death benefits from pension funds, accounts with certain financial institutions subject to a nomination and the proceeds of life insurance policies which have been written into trust. Trust property will also frequently fall outside of the estate but this will depend on the terms of the trust.
Since the Land Transfer Act 1897, the administrator (sometimes known as the administratrix, if female) acts as the personal representative of the deceased in relation to land and other property. Consequently, when the estate under administration consists wholly or mainly of land, the court will grant administration to the heir to the exclusion of the next of kin. In the absence of any heir or next of kin, the Crown has the right to property (other than land) as bona vacantia, and to the land by virtue of the historic land rights of the Crown (and the Duchy of Cornwall and Duchy of Lancashire in their respective areas). If a creditor
claims and obtains a Grant of Administration, the court compels him or her to enter into a bond with two sureties that he or she will not prefer his or her own debt to those of other creditors.
s, or when the executors appointed by the will cannot or will not act, the Probate Division of the High Court of Justice
or the local District Probate Registry will appoint an administrator who performs similar duties to an executor. The court does this by granting letters of administration to the person so entitled, who must hire a lawyer to get this process started. Grants of administration may be either general (where the deceased has died intestate) or limited. The order in which the court will make general grants of letters follows the sequence:
Under the rules for distribution of estates without a will (the Intestacy Rules), where a child under 18 would inherit or a life interest would arise, the Court or District Probate Registry would normally appoint a minimum of two administrators. On some estates, even under an intestate, it is not clear who are the next-of-kin, and probate research
may be required to find the entitled beneficiaries.
Administration cum testamento annexo, where the deceased has left a will but has appointed no executor to it, or the executor appointed has died or refuses to act. In this case the court will make the grant to the person, usually the residuary legatee, with the largest beneficial interest in the estate.
Administration de bonis non administratis occurs in two cases:
In the first case the principle of administration cum testamento is followed, in the second that of general grants in the selection of the person to whom letters are granted.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, Administration of an estate on death arises if the deceased is legally intestate. In United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
law, the term Estate Administration is used.
Where a person dies leaving a will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
appointing an executor
Executor
An executor, in the broadest sense, is one who carries something out .-Overview:...
, and that executor validly disposes of the property of the deceased within England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, then the estate will go to probate
Probate
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court decides the validity of a testator's will...
. However, if no will is left, or the will is invalid or incomplete in some way, then administrators must be appointed. They perform a similar role to the executor of a will but, where there are no instructions in a will, the administrators must distribute the estate of the deceased according to the rules laid down by statute and the common trust.
Certain property falls outside the estate for administration purposes, the most common example probably being houses jointly owned that pass by survivorship on the first death of a couple into the sole name of the survivor. Other examples include discretionary death benefits from pension funds, accounts with certain financial institutions subject to a nomination and the proceeds of life insurance policies which have been written into trust. Trust property will also frequently fall outside of the estate but this will depend on the terms of the trust.
Since the Land Transfer Act 1897, the administrator (sometimes known as the administratrix, if female) acts as the personal representative of the deceased in relation to land and other property. Consequently, when the estate under administration consists wholly or mainly of land, the court will grant administration to the heir to the exclusion of the next of kin. In the absence of any heir or next of kin, the Crown has the right to property (other than land) as bona vacantia, and to the land by virtue of the historic land rights of the Crown (and the Duchy of Cornwall and Duchy of Lancashire in their respective areas). If a creditor
Creditor
A creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...
claims and obtains a Grant of Administration, the court compels him or her to enter into a bond with two sureties that he or she will not prefer his or her own debt to those of other creditors.
Letter of Administration
Letter of administration: Upon the death of a person intestate, or of one who left a will without appointing executorExecutor
An executor, in the broadest sense, is one who carries something out .-Overview:...
s, or when the executors appointed by the will cannot or will not act, the Probate Division of the High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
or the local District Probate Registry will appoint an administrator who performs similar duties to an executor. The court does this by granting letters of administration to the person so entitled, who must hire a lawyer to get this process started. Grants of administration may be either general (where the deceased has died intestate) or limited. The order in which the court will make general grants of letters follows the sequence:
- The surviving spouseWidowA widow is a woman whose spouse has died, while a widower is a man whose spouse has died. The state of having lost one's spouse to death is termed widowhood or occasionally viduity. The adjective form is widowed...
, or civil partnerCivil partnerships in the United KingdomCivil partnerships in the United Kingdom, granted under the Civil Partnership Act 2004, give same-sex couples rights and responsibilities identical to civil marriage...
, as the case may be; - The next of kinNext of kinNext of kin is a term with many interpretations depending on the jurisdiction being referred to. In some jurisdictions, such as the United States, it is used to describe a person's closest living blood relative or relatives...
; - The CrownThe CrownThe Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
; - A creditorCreditorA creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...
; - A stranger.
Under the rules for distribution of estates without a will (the Intestacy Rules), where a child under 18 would inherit or a life interest would arise, the Court or District Probate Registry would normally appoint a minimum of two administrators. On some estates, even under an intestate, it is not clear who are the next-of-kin, and probate research
Probate research
Probate research deals with finding heirs and proving their right to an inheritance. In some estates there may be no known heirs, or there may be missing heirs whose names are known but their contact information is not. There may be also be known heirs from one part of the family, but another part...
may be required to find the entitled beneficiaries.
Letters of administration
The more important cases of grants of special letters of administration include the following:Administration cum testamento annexo, where the deceased has left a will but has appointed no executor to it, or the executor appointed has died or refuses to act. In this case the court will make the grant to the person, usually the residuary legatee, with the largest beneficial interest in the estate.
Administration de bonis non administratis occurs in two cases:
- Where the executor dies intestate after probate without having completely administered the estate
- Where an administrator dies.
In the first case the principle of administration cum testamento is followed, in the second that of general grants in the selection of the person to whom letters are granted.
- Administration durante minore aetate, when the executor or the person entitled to the general grant is under age.
- Administration durante absentia, when the executor or administrator is out of the jurisdiction for more than a year.
- Administration pendente lite, where there is a dispute as to the person entitled to probate or a general grant of letters the court appoints an administrator till the question has been decided.
See also
- ProbateProbateProbate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court decides the validity of a testator's will...
(administration (as to both testate and intestate estates) in the United StatesUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
and England and WalesEngland and WalesEngland and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom... - Administration of Estates Act 1925Administration of Estates Act 1925The Administration of Estates Act 1925 is a law passed in 1925 in England and Wales that changed the rule of inheritance from primogeniture to that of modern day norms. This statute does not apply to Scotland or to Northern Ireland....
- Calendars of the Grants of Probate and Letters of AdministrationCalendars of the Grants of Probate and Letters of AdministrationCalendars of the Grants of Probate and Letters of Administration or CGPLA was an index published in the United Kingdom and Ireland that lists an alphabetical summary of probate documents such as wills...
(CGPLA) - Estate planningEstate planningEstate planning is the process of anticipating and arranging for the disposal of an estate. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses...