Derby solicitors

For cheap fixed price probate, conveyancing & divorce call friendly local Derby lawyer , Gary Dickie , at Mc Intosh Fleming on (01332) 518135 . Fixed fees not “estimates” or hourly charging unlike most other Derby solicitors.

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It is often important to decide whether costs and expenses incurred by a personal representative are properly payable out of the estate as testamentary and administration expenses or should be borne by the legatees or devisees or persons entitled on intestacy out of their respective interests. The general principle is that the estate must bear the expenses incident to the proper performance of the duties of the personal representative as personal representative but not the expenses involved in the execution of trusts which arise after the estate has been administered or an assent given, or the expenses of clearing the property comprised in a gift so as to make it available by way of assent in favour of the donee.

The general costs of administering the estate are testamentary expenses, for this term is not confined to expenses connected with the will, and indeed it applies to an intestacy. The estate must therefore bear the cost of obtaining the grant, collecting and preserving the assets, discharging the debts and distributing the balance. The insurance premium for a missing beneficiary policy can be a proper testamentary expense. It seems that the cost of moving and storing objects specifically bequeathed before and after the executor assents to the bequest is borne by the legatee.

The acceptance and withdrawal fees of the Public Trustee or trust corporations in respect of an annuity are borne by the estate where the residue of the estate has been given subject to payment of the annuity, but where funds are set aside to secure annuities and do not then fall into residue the withdrawal fee must be borne by those funds and not by residue. Similarly the acceptance fee in respect of a settled legacy is paid by the estate but the withdrawal fee is paid out of the legacy. Income fees are payable out of income and must be borne by the income of a settled legacy or, in case of an annuity, out of the funds set aside to secure the annuity or the residuary estate as the case may be.

Inheritance tax payable in respect of the deceased person’s death on property situated in the United Kingdom which vests in the personal representatives is treated as a testamentary expense, unless the deceased showed a contrary intention in his will.

Capital gains tax on death is no longer payable. Capital gains tax due from the deceased during his lifetime would be payable as an ordinary debt or liability of his estate.

Costs of proceedings are in the discretion of the court, but the discretion is a judicial one exercised on the following principles. The executor’s costs of probate proceedings are testamentary expenses and therefore payable out of the estate, and the costs of other parties may be, but are not necessarily also allowed. The executor’s costs of proceedings for directions or the construction of the will or administration of the estate by the court are testamentary expenses and, if the fault is the testator’s, the costs of all necessary parties will be payable out of the estate, even if only one particular fund is concerned.

The personal representative is entitled to be reimbursed from the estate, or may pay out of the estate, expenses properly incurred by him when acting on behalf of the estate, without any special provision to that effect. This right of indemnity is a first charge as well upon the income as upon the capital of the estate, and the expenses may be retained out of the income until provision can be made for raising them out of the capital. The charges and expenses include the costs of probate proceedings, and of claims relating to the estate, which were brought or defended with the leave of the court, or which, though no leave had been obtained, it was proper to bring or defend. Should the representative desire to have his costs assessed by a costs judge against the estate, he should obtain an express direction to that effect in the order for the detailed assessment of his costs, charges and expenses.

A personal representative who has improperly brought or defended proceedings will be disallowed as against the estate both his solicitor’s bill of costs in the proceedings and the costs he has had to pay to his opponent6.