WHO ARE PERSONAL REPRESENTATIVES?

Persons who administer the estate of another because of the incapacitation of that other person are generally referred to as 'person representatives'.

CHAMAN LAW FIRM

6/2/2022 4 min read

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WHO ARE PERSONAL REPRESENTATIVES

The Black’s Law Dictionary defines a personal representative as “a person who manages the legal affairs of another because of incapacity or death, such as the executor of an estate.” From the above definition, it can be seen that a personal representative is specifically called Executor i.e. where the testator/testatrix dies leaving a Will and appoints him/her as such; and Administrator where the Will makes no mention of a personal representative but is appointed by the court where the deceased dies intestate (without a Will).

Therefore, an Administrator is a person to whom the court grant the order to administer the estate of the deceased where no personal representative is listed in the Will or where there is no Will.

WHAT ARE THE RIGHTS OF PERSONAL REPRESENTATIVES?

Right to Sue

The right to sue on the estate i.e. they can maintain an actions in court if need be and also settle claims on behalf of the estate. Also, any action against the estate of the deceased person can be instituted against the personal representatives, Section 15 Administration of Estate Law Lagos State.

Right to Seize Property for Rents

Section 16Administration of Estate Law Lagos State, empowers an administrator to distrain property in the event of failure to pay rent.

Power to Sell, Lease, Mortgage or Transfer Property

A personal representative has the power to engage in any transaction as regards to the the estate he administers.

Power to Run a Business as a Going Concern

The death of an executor does not halt an ongoing business he/she might have engaged in, suffices before his death he appoints an administrator to oversee his estate after his death. However, executor must have before his demise specified the minimum period for which the business should be run.

Power to Appropriate Assets

Section 44 (1) Administration of Estates Law, Lagos State. The power of appropriation shall not prejudice any specific beneficiary i.e there must not be preferential treatment. And as such, the appropriation must be fair.

DUTIES OF PERSONAL REPRESENTATIVES

Personal representatives have huge duties and responsibilities as regards to the estate of the testator which they administer. They are therefore obliged to render the following duties –

1. To prove the Will by applying to the probate registry

2. To ensure the testator is given decent burial

3. To collect and gather properties in the estate, and exhibit on oath

4. To pay out all liabilities and debts of the testator

5. To ascertain beneficiaries entitled to the estate and Distribute the Assets

6. Duty of Care

7. Duty to Act in Good faith

8. Account and Inventory

9. To Issue Assent

LIABILITIES OF PERSONAL REPRESENTATIVES

The liabilities of a personal representative are –

1. Liability for Waste and Conversion – Where an administrator converts to his use or waste assets in the estate, he and his estate shall be liable and even if he dies, his estate shall continue to be liable. Where a personal representative commits a breach of any of their duties, which results in a loss to a creditor or beneficiary, he is said to have wasted the assets in the estate of the deceased person. Where there are multiple grantees, each is responsible for his actions.

2. Liability to Creditors or Beneficiaries – Where personal representatives wrongfully distribute the assets as a result of negligence or not being aware of the existence or whereabouts of a beneficiary or creditor, they may incur personal liability in favour of that beneficiary or creditor.

3. Where he intermeddles with the estate without taking out probate –Where he intermeddles with the estate without taking out probate, he can be compelled to take probate. If any named executor in the Will of the deceased person takes possession and administers or otherwise deals with any part of the property of the deceased, and does not apply for probate within three (3) months after the death, or after the termination of any suit or dispute respecting probate or administration, he may, independently of any other liability, be deemed to be in contempt of the court, and shall be liable to such fine not less than fifty thousand naira (N50,000), as the judge may deem fit to impose – Order 55 Rule 8, Lagos.

4. To pay inheritance and other estate taxes – Personal representatives are liable to pay inheritance and other estate taxes that may be imposed on the estate he is administering. Thus, he cannot postpone payment of the taxes since this is part of the liabilities of the estate.

5. Liability for co-representation – The estate of the deceased can not be divided but joint in the sense that they agree in their actions. Therefore, one representative cannot claim that he will administer one part while the other representative will administer the other parts and none of them can release his interest to the other – Ibrahim v. Ojomo (2004) All FWLR (Pt. 199) 1285.

6. Liability as executor de son tort – Where a person, without authority, intermeddles with the estate of a deceased person, he does that with grave consequences, and will therefore be liable to the extent of what he received from or realised out of the estate. He will also bear any of the following liabilities – a) Liability for any loss suffered by the estate; b) Liability to pay for services rendered to the estate during the period of intermeddling or in the lifetime of the deceased; c) Liability to creditors. d) Liability for personal expenses. e) Liability to pay fine. f) Liability for Inheritance Tax. g) Liability for citation.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

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