A person who dies having made a will is called a testator. A will acts as a plan on how the property of the deceased will be distributed. In the will, the testator can appoint a person known as an Executor who will be responsible for distributing their property as described in the will. They represent the deceased and can do anything the deceased wishes/intentions would have done such as sell properties. A personal representative is the executor or administrator of the deceased’s property. They are required to realign the wishes of the deceased set out in the will. Section 79-95 of the succession act Kenya discusses the powers and duties of a personal representative and will be explained in this article.
Who can be a PR/Executor?
If a person dies without appointing an executor, one will be appointed by the family or public trustee and will distribute the property as described in the will. The executor appointed may be any person including a beneficiary.
How does a PR/Executor’s perform its role?
The personal representative has the following powers to execute his role:
- To enforce all causes of action which survived the deceased or arise out of death on behalf of the estate. This means they can sue or be sued on behalf of the estate.
- To sell or any party of the assets.
- To assent after the confirmation of the grant to the vesting of property in the beneficiaries, this means that the personal representative has the power to distribute the capital assets once grant is confirmed.
- To appropriate after confirmation of the grant any of the assets of the estate vested in them. This power is exercised in cases where after paying debts and liabilities the gifts of the gifts available are not sufficient to the purpose of complying with the wishes of the deceased person. In the event that the liabilities the assets the representatives would be forced to sell some of the gifts to settle the liabilities. This means that the beneficiary who is entitled to the gift sold has to be given an alternative gift. This is known as appropriation.
A personal representative must take up letters of administration or grants of probate from the court before fulfilling their following duties:
- To provide any payout of the estate expenses of the funeral for the deceased. Funeral expenses are always a cost paid out of the estate.
- To collect all the free property of the deceased including debts owing to him and money payable to his personal representative by reason of his death such as insurance policies, gratuity payments and it is in exercise of this duty that the personal representatives sues debtors.
- To pay out of the estate all the expenses of obtaining the letters of administration and all other expenses
- To ascertain and pay out of the estate all the debts and liabilities of the deceased.
- To apply for confirmation of grant within six months of the date of the grant.
- The representative must in the application produce and furnish to the court a full and accurate inventory of assets and liabilities of the deceased.
- To distribute or retain in trust for the minor beneficiaries all the assets remaining.
- The duty to complete the administration of the estate within six months after the date of confirmation of the grant.
It is important to that a personal representative must first fulfil any debts of the estate before distributing the remainder to the beneficiary.
Penalty for non-compliance
In the event that a personal representative does any of the following, they shall be guilty of an offence, and shall be liable to a fine not exceeding ten thousand shillings, or to imprisonment for a term not exceeding one year, or to both fine and imprisonment:
- Willfully or recklessly neglects to get in any asset forming part of the estate, misapplies any such asset or subjects any such asset to loss or damage.
- Willfully fails to produce to the court any such inventory or account as is required by the provisions of paragraphs (e) and (g) of section 83.
- Willfully or recklessly produces any such inventory or account which is false in any material particular.
- Knowing or having reason to believe that the estate will prove to be insolvent, continues to administer it without petitioning for administration thereof in bankruptcy.
If at any time, there is a continuing trust and the personal representative is the sole surviving administrator and they willfully fail to apply to the court within three months in accordance with section 75A for the appointment of further administrators shall be guilty of an offense and shall be liable to a fine not exceeding five thousand shillings.
The role of the PR/Executor is to fulfil the wishes of the deceased especially as pertains to their property. Who gets what? An executor/PR is trusted to perform, the wishes of the deceased and act in the deceased’s best interest. The law grants the executor the power to do so but also monitors and punishes the executor who acts contrary to the trust. Choice of executor is therefore important.