Bringing a Claim Against the Personal Representatives of an Estate

If a personal representative fails to correctly administer the estate, you may be able to bring a claim against them for breach of trust.

What is a Personal Representative?

A personal representative is the person or persons who are legally responsible for administering the estate of someone who has passed away. The term personal representative includes both executors of a valid Will and administrators if there is no Will.

Duties of a Personal Representative.

Personal representatives have a duty under the Administration of Estates Act 1925, s25 to:

1. Collect and get the real and personal estate of the estate and of mystery according to Law
2. When required to do so by the courts, exhibit a knife in the court a full inventory of the estate and when so required for an account of the administration of the estate to the court
3. When required to do so by the High Court, deliver up the kind of probate or administration to that court.

What should you do if a Personal Representative Fails to Comply with their Duties?

A personal representative who fails to carry out any part of that duty will be in breach of that duty. Personal representatives who, through negligence and default have caused loss to an estate will be open to an action by beneficiary of the estate.

Examples of negligence or default may consist of:

• Failure to carry out the provisions of the Will
• Making distributions two persons not named in the world
• A failure to maintain neutrality between the beneficiaries on the one hand and the claimants on the other.
• Post and representative arriving a personal benefit from the estate.
• Personal representatives failing to obtain sufficient information regarding the estate.
• Sending assets at an under value

What is the Procedure for Bringing a Claim Against a Personal Representative?

To bring an action against personal representatives for breach of duty, an application to the court must set out the alleged breaches and the loss which is alleged to flow from the breaches.

Usually, when you bring a claim, you will include that the personal representative to pay the cost of the action. It is also generally appropriate to ask for an order to remove the personal representatives and replace them.

What Happens when you Serve the Claim on the Personal Representative?

If a personal rib sensitive does not wish to admit the claim, they should give notice of their intention to defend the claim.

If a personal representative does not defend the claim or does not respond within the usual time limits, judgement in default will be entered.

Costs for the Application

A personal representative should not seek to pay the cost of the defence from the estate because if they are found guilty of breach of trust then they will be personally liable for their costs and the cost of the beneficiary.

If the beneficiary finds out that the personal representative is trying to pay their fees from the estate, they should make an application for an injunction or direction from the court.

How do you Measure the Loss Caused by the Personal Representative?

The personal representative will normally have to make good the loss which has been caused to the estate by their breach.

If a beneficiary has used the assets of the estate to make a profit, the beneficiaries can either require a personal representative to accounts for the profit made by using the estate property or they can require the payment of interest at such rate that the court thinks appropriate.

Personal Representative Defences

A person representative may have a number of defences to their actions. Common defences include:

• Statutory relief
• Court order
• Trustee act 1925 section 61
• Exemption clauses.
• Personal represent is not liable for breach of another.
• Release by beneficiaries
• Limitation
• Exceptions from limitation rule.

How Pinney Talfourd can help?

To speak with one of our Contentious Probate solicitors about bringing a claim against a personal representative or defending a claim made against you, please call us on 01708 229 444 (Upminster Office) or 01277 211 755 (Brentwood Office).