# Powers of executor pending Grant of Probate



## Padraigb (1 Feb 2010)

I am the nominated executor, but not a beneficiary, of a relative's will. Happily, personal relationships between me and the beneficiaries, and between the beneficiaries themselves, are excellent. Unsurprisingly, I want to keep it that way.

It will take the best part of six months to get probate granted. In the interim, there are issues to be addressed. For example, a contractor had just started a renovation project on the deceased's house. It would be feasible to stop the work and pay the contractor a _quantum meruit_, but the beneficiaries are of the opinion that it would be right, and probably financially advantageous in terms of the value of the house, to proceed with the contract.

My wish, so far as the will empowers me, is to do what the beneficiaries want done. And that brings me to my central question: in advance of the Grant of Probate, do I have, at least generally, the powers of a personal representative?

I know it is difficult to get possession of savings and bank accounts without the Grant, or to dispose of real property, but those things are not a problem: I can arrange funding and reclaim it later.


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## Lighthouse (10 Feb 2010)

I can offer no advice on your specific questions. However, re the work on the house - I can only say this. My father died last autumn and his will states that the family home is to be sold. We have been advised by 3 separate estate agents that we should spend no money on upgrading the house; we will see no return on it. The advice given by all 3 though was to clean it from top to bottom, dejunk it and keep it dry and aired throughout. There is a huge garden and we plan to keep the grass cut, the hedges trimmed and cultivate the glasshouse, fruit bushes and vegetable plot.


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## Padraigb (10 Feb 2010)

Thanks for the response. Yes, I agree that it usually makes business sense not to do major work on a house that is to be sold. The beneficiaries have come around to the view that the full renovation should not proceed, so the big question has been removed from the agenda. 

While the particular thing that worried me is no longer an issue, I am still interested in knowing what legal powers an executor has before the grant of probate. My interest is more general now, and not linked to any major concerns I have. But I think of what my dilemma might have been had the builder started a few days earlier, and brought the job to a stage where it might not be so conveniently stopped.

Before I asked the question here, I had done some online searching, and failed to find anything clear. Given that it can easily take six months or more to get probate, it seems strange to me that it is not made clear where powers lie in the interim period.


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## mf1 (10 Feb 2010)

Are you the Executor appointed by Will? If yes, your powers derive from the Will. The Act is quite clear about the powers.

Section 60 (3) - Succession Act 

(3) The personal representatives of a deceased person may from time to time raise money by way of mortgage or charge for the payment of expenses, debts and liabilities, and any legal right and, with the approval of all the beneficiaries being sui juris or the court (but not otherwise), for the erection, repair, improvement or completion of buildings, or the improvement of lands forming part of the estate of the deceased


mf

PS - a good general practice solicitor would also be able to guide you in this regard. 

PPS - Completely off topic. 
A number of my clients like to deal with extracting Grants themselves while popping little questions at me at regular intervals. It is wildly irritating! I am now going to recommend to them that (a) doing it themselves means  doing it themselves and (b) that they buy the Law Society's Textbook/Manual on Wills, Probate  and Estates. Its very comprehensive.


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## Padraigb (10 Feb 2010)

I hope that I am not annoying you, mf! Please recognise that in renewing my question I am operating in conversational mode, and not looking for free legal advice. 

What really interests me is what probate really is. Yes, I know it is a court document saying that a will has been "proved", is valid, and thus recognising a person or persons as having the powers to execute the will. Before probate is granted, anybody with whom the executor attempts to deal can effectively raise the challenge "prove to me that you are entitled to deal with me in this matter". One particular circumstance where this requirement for proof arises is with financial institutions; there is no way they would release estate funds to an executor in advance of the grant of probate. So there is a period between death and grant of probate where the executor seems to have the powers, but cannot use all of them.

I would be quite happy to buy (and even read) a good textbook. I would be grateful if you gave me the author's name and the book's title.

I sympathise with your annoyance about people "popping little questions at you". I don't believe in free consultations, because professionals need to make a living. But lawyers in practice are a mixed bunch. I have dealt with an estate before, and asked a practising solicitor for professional advice for which I expected to pay; he refused, but suggested that I hand the entire matter over to him. So I went to another, who provided advice and a little practical help for a surprisingly modest fee.


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## rockofages (11 Feb 2010)

mf1 said:


> (b) that they buy the Law Society's Textbook/Manual on Wills, Probate  and Estates. Its very comprehensive.


If you are talking about the book with that _exact_ title, then from the perspective of someone doing a personal application it's wrong on a number of points (e.g. timing of Inland Revenue Affidavit). It is clearly aimed at solicitors, and sent me down the wrong path a few times! To anyone doing a personal application I'd say avoid that particular book as a main reference.

The Probate offices themselves have very good leaflets and are very helpful. It also helps to have a solicitor you can bounce the very odd question off if you are having problems with beneficiaries etc.

I'm doing a personal application myself and am operating to a few guidlines: a) I'm doing the job to satisfy the deceased, not the beneficiaries. b) Expenditure is for maintenance only, not improvements. ie spend what needs to be spent, and no more. Ultimately you have no authority to deviate from the will, and doing so might cause unforeseen trouble.

(The first solicitor I approached basically said the same to me as they did to you: hand over the lot to them or go elsewhere)


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## Padraigb (12 Feb 2010)

Thanks for the comments, rockofages. I think I'll look for the book anyway, because my curiosity is a little bit broader than simply seeking a DIY manual. I have a good basic understanding of the process, and some experience of the procedures, so I am neither intimidated nor in danger of making grave errors.

It happens that there are some ongoing matters that cannot be conveniently or reasonably halted. The building contract could have been a real problem had the work been a bit more advanced. That's what caused me to wonder how an executor might be placed if he or she found it necessary to make decisions with which the beneficiaries, or even one of a number of beneficiaries, did not agree. Happily for me, unless I lose the run of myself entirely, I don't see much danger of that. 

I do, however, want to keep the beneficiaries fully informed on what is happening and of their rights and my legal obligations to them. That is where an authoritative reference would be very useful. I don't want to say "trust me, even though I am not a professional in these things". I'd be happy to say "you can look at this book to satisfy yourselves that I am doing the right thing".


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## dewdrop (12 Feb 2010)

Dare i say i feel you may be taking the matter too seriously. I am aretired bank manager and have acted as an executor. Borrowings by executors were quite common when required. If you are worried that some of the beneficiaries might not agree with what you are doing as long as you act in the best interest you are ok. If i ever thought someone might question something i would get all to sign a simple document agreeing to the course of action..I stress this is layman advice but common sense is usually the best advice in some crcumstances.


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## Padraigb (12 Feb 2010)

Thanks. dewdrop. I don't think I am taking the matter too seriously: I'm not worried or stressed by it. Nor is funding a problem. But I do have to take it seriously enough.

Had the building contract been more advanced at the time of death, I could have found myself with an interesting challenge -- but I am spared that. There are a couple of other issues that involve a bit of tightrope-walking, but I don't want to bring them into the discussion here.


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## rockofages (12 Feb 2010)

Padraigb said:


> I think I'll look for the book anyway, because my curiosity is a little bit broader than simply seeking a DIY manual.


It is readily available: I got it from Waterstones at €55. It's handy for thumbing through alright, but as I said don't rely on it as a main reference.


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## ElectronEng (12 Feb 2010)

If there is money in building societies, banks etc. which forms part of the estate then you may be able to gain access to the funds before probate has been granted. In this case you would not need to take out a loan to complete the work or pay off debts owing on the estate (which should be your first priority).

In my own case a solicitor's letter, death certificate and indication that probate would be applied for was sufficient for most institutions (all building societies) to release funds before we had submitted a probate application.


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