When a person dies, it is necessary to determine who has authority to deal with their affairs and to obtain a grant of representation to administer the estate of the deceased. This person is referred to as a personal representative. The appointment of the personal representative may be as:-
An executor, under the deceased’s last will and testament;
An administrator, if the deceased did not leave a will and has therefore died ‘intestate’;
An administrator with the will annexed, if there is a will but an ineffective appointment of the executor.
In the event that the deceased has died intestate, the order of whom may be appointed is determined under the Administration of Estates Act 1925, and is usually a close family member.
Many of our clients ask us whether the following persons have any right to act as a personal representative in the administration of a deceased’s estate, if they have not been appointed under any of the methods set out above:-
The deceased’s ‘next of kin’;
The deceased’s Attorney appointed under a Lasting Power of Attorney;
The parents or guardians of minor children who are beneficiaries under the will.
Unless those people have also been appointed as an Executor under the will or have a right to become an administrator according to the rules set out under the Administration of Estates Act (see below), they have no right to act as personal representative by virtue of their next of kin, attorney or parental status.
‘Next of kin’ is a title that can be given to anyone from your partner, to blood relative to even your friends, and is primarily used by emergency services to keep loved ones informed. Being ‘next of kin’ does not therefore grant any legal rights as a result of the title and that person cannot make decisions on someone else’s behalf, as an Attorney could for example. However, if you are an Attorney appointed under a Lasting Power of Attorney, such appointment ends immediately on the death of the donor (the appointor).
Whilst the parents or guardians of minor beneficiaries under a will can ask the trustees to make a distribution under the Trustee Act 1925 for the maintenance or benefit of their children, they have no rights to make the decision themselves (unless of course they are also the trustee!) or meddle in the estate.
If you have any questions with regards to the administration of a deceased’s estate, please do not hesitate to contact Laura Sentkovsky in our Private Client team on 0207 703 5034 or at email@example.com.
Meaby&Co is authorised and regulated by the Solicitor’s Regulation Authority (SRA Number 447880) and registered in England and Wales with registered number OC322672 at 2 Camberwell Church St, London, SE5 8QY.