Q&As

Insolvent estate: options without Court of Protection application

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Produced in partnership with Lynne Counsell of Addington Chambers
Published on: 22 August 2018

The deceased died intestate with assets of less than £10,000 and liabilities of around £15,000 (ie an insolvent estate). The deceased's wife is entitled to the estate under the intestacy rules but does not have mental capacity. Banks and share registrars are refusing to release the estate assets to the deceased's daughter. Given the low value of the estate, is there any pragmatic way forwards without the daughter having to make a Court of Protection application and then apply for grant of letters of administration on behalf of her mother?

In the ordinary course of events, assets are payable to the personal representative (PR) of the deceased or, in certain circumstances, paid directly to the beneficiary (Administration of Estates (Small Payments) Act 1965), but in this case the beneficiary cannot give a valid receipt.

In this particular situation, there are a number of options that a party may wish to consider:

  1. the conventional route is to apply to the Court of Protection for an order providing for the relevant person to be a PR and then apply

Lynne Counsell
Lynne Counsell

Barrister, Addington Chambers


Lynne has been in traditional Chancery practice for some thirty years, specialising in probate matters, construction of wills and trusts and also financial services and drafting.

Lynne was for some years counsel for Tower Hamlets, representing them on landlord and tenant cases and counsel for Bedford Building Society representing it on mortgage cases.

Lynne has written or updated over fifty books, including writing the initial volume of Atkin’s Court Forms “Financial Services” and updating Halsbury’s Laws on Injunctions. Lynne was also co-author of two editions of “Insider Trading” and co-editor and one of the writers of “Chancery Practice and Procedure.”

Articles include “Marketing of Investments” for the Law Society Gazette and “The Doctrine of Mutual Wills” for the Trust Quarterly Review. Lynne won one of the few cases on mutual wills in the last fifty years – Charles v Fraser (2010).

Lynne has drafted the standard unit trust for the government of Nigeria, the rules and related documentation for various building societies and clubs, shareholder agreements, company takeovers compliance documentation for certain banks as well as wills and trusts.

Lynne was awarded the 2017 Corporate international Magazine Global Award – “Investment Contracts Barrister of the Year in England”.

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Jurisdiction(s):
United Kingdom
Key definition:
Intestate definition
What does Intestate mean?

A reference to a person who has died without leaving a valid Will or who has failed to dispose of their entire estate by Will.

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