Trust, Wills and Probate

Dealing With an Insolvent Estate

One of the rules that applies to the administration of estates is that whilst a person appointed as executor under a will can refuse to accept the appointment, once an executor ‘intermeddles’ in the estate, in principle he or she cannot then ‘resign’ from the responsibility.

It is relatively easy inadvertently to carry out an act which demonstrates one’s acceptance of the rôle of executor. This normally causes few problems, but when the estate being administered is insolvent, matters can get very complicated indeed.

When the liabilities of the deceased exceed the available assets, the personal representatives of the insolvent estate have a duty to administer it in the best interests of the creditors, not the beneficiaries. Debts must be cleared before any legacies are paid. If this rule is breached, the executors may be required to refund the value of any legacies paid from the estate. Payments made to the executor by an insolvent estate may also have to be repaid, with interest.

One possible solution to this problem is for the executor to seek an Insolvency Administration Order (IAO), under which the estate administration is passed to a qualified insolvency practitioner.

The practical effect of an IAO is that the estate is administered in a way that is very similar to a bankruptcy. Any legal proceedings against the estate are stayed and the personal representatives are protected from personal claims. The IAO is deemed to commence at the date of death, and a statement of affairs must be prepared and a creditors’ meeting held.

The assets of the deceased are collected in and distributed according to the priorities set out in insolvency law. The beneficiaries of the estate rank last in order of right to be paid.

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