Author: Helena Luckhurst
This article is taken from Helena Luckhurst’s blog The Wealth Lawyer UK
How should a personal representative (PR) deal with a request from a beneficiary for an interim distribution before the estate is finalised? Estates can take many months to conclude but a beneficiary may be in need of some of their inheritance sooner. Can an executor help out without putting him or herself on the line?
Any PR (be they an executor of a Will or an administrator of an intestate estate) facing a request for an early distribution should consider their own position as well as the beneficiary’s. A PR owns a duty to the court, both to gather in the assets of the deceased and also to ensure that sufficient estate assets are retained to meet all liabilities and pay creditors. Not all liabilities may be evident at the time of death. Failure to retain sufficient funds to pay these may result in creditors pursuing the PR personally, so a PR must exercise caution in the face of such requests.
Unless the PR was very familiar with the deceased’s finances, or the beneficiaries can be entirely trusted to return estate assets if necessary, a PR should consider taking advantage of the protection offered by s.27 of the Trustee Act 1925 and advertise for creditors in the London Gazette (and elsewhere if appropriate, depending upon the deceased’s circumstances). Once the two month notice period has expired and if the PR has still received no notification of a claim prior to distribution, any creditor who appears after distribution has to pursue the recipient of the estate funds, rather than the PR.
Section 44 of the Administration of Estates Act 1925 provides that ‘a personal representative is not bound to distribute the estate of the deceased before the expiration of one year from the death’. Accordingly PR’s cannot be forced to distribute sooner but could consider doing so if they are confident that all liabilities and creditors have been ascertained.
For deceased UK domiciliaries, PRs should be aware that claims under the Inheritance (Provision for Family and Dependents) Act 1975 can be issued up to 6 months after the Grant of Probate is itself issued and the claimant then has a further four months in which to serve the claim. Therefore 1975 Act claimants can appear up to ten months after the Grant has issued.
If an interim distribution is needed sooner, a PR should consider insisting on a form of indemnity from the beneficiary to confirm that, should a claim be made against the PR in connection with the estate, the beneficiary will indemnify the PR for that claim out of the funds distributed. The PR will need to consider whether that beneficiary will be good for the money if the indemnity needs to be relied upon. Ideally the PR will also obtain confirmation from the beneficiary that the beneficiary accepts the sums distributed at least in partial satisfaction of their interest in the estate. It may be appropriate to provide a set of draft estate accounts at this point.
Alternatively, depending upon the assets comprising the estate, the PR may be able to offer to loan a beneficiary a portion of their share of the estate, in return for a suitable indemnity. This is likely to be more satisfactory for a PR, as the PR still retains ownership of the estate assets, albeit in the form of an IOU. The creditworthiness of the beneficiary will need to be considered once again.
Lay PRs, in particular, can often feel under pressure from family member beneficiaries to make early distributions. However, creditors need make no exceptions for lay PRs! The law allows PRs to protect themselves and a prudent PR will do just that.
Helena Luckhurst, Partner, Fladgate LLP (firstname.lastname@example.org)