Q&As

If an estate is insolvent and the deceased did not leave a Will do those individuals entitled to apply for Letters of Administration still have a duty to do so?

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Published on LexisPSL on 12/11/2014

The following Wills & Probate Q&A provides comprehensive and up to date legal information covering:

  • If an estate is insolvent and the deceased did not leave a Will do those individuals entitled to apply for Letters of Administration still have a duty to do so?

If an estate is insolvent and the deceased did not leave a Will do those individuals entitled to apply for administration'>Letters of Administration still have a duty to do so?

Persons who are entitled to a grant to an estate can choose not to take out that grant. It would be unusual for those entitled to take out letters of administration to an insolvent estate to do so, unless to take, or defend, proceedings for or against the estate that may bring a material advantage to that estate. If there was some advantage those persons set out in the Non-contentious Probate Rules 1987 (SI 1987/2024), rule 22 can make an application.

If there is someone within the list available and capable of taking out a grant, they have the right to renounce that entitlement and that may well be the safest course in circumstances where there is an insolvent estate. For further reading on this, see the further reading link to Chapter 15 of Tristram and Coote's Probate Practice for an overview of renunciation. In particular, the following paragraph appears in that chapter:

'No person other than an executor can be compelled to take a grant, even though he may have intermeddled. Such persons are therefore entitled to renounce.'

Based on the above, it would therefore seem unlikely in any event that those entitled

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