Acting as attorney for a charity

A personal representative (PR) is legally responsible for an estate's assets, which could include, amongst other things, money, property and investments. The PR's responsibility lasts from the date of the deceased's death until everything has been passed on to the beneficiaries – the period known as the administration period. The length of the administration period varies from estate to estate but typically lasts between nine months (in very simple cases) and over two years where the estate is more complex. During the administration period, the PR (or PRs) will have a range of responsibilities including selling property, closing bank accounts, reporting tax and accounting to the beneficiaries.

Benefits of charities acting as a PR

For charities there can be many benefits of acting as PR including:

• Purchasing power: you can choose the right solicitor for the job, using a firm that the charity knows and trusts, and that has the expertise needed to administer the estate.
• Control over costs: you will be responsible for agreeing and approving all costs.
• Risk management: you will be at the forefront of any decisions that are made and will have control over how any decisions might impact on your charity from a reputational perspective.
• Cash flow: subject to the advice you receive, you can decide when interim distributions are made and how much is paid.

Avoiding the administrative burden

Although there are many benefits to acting as PR, there is sometimes a reluctance to take on the role because of the additional responsibility and administrative burden it is believed will result. However, acting as PR does not have to be an onerous task – especially if you appoint an attorney to make the grant application and administer the estate on behalf of your charity.

The attorney administrator will be able to deal with the day-to-day management of the estate and will be able to sign documents on behalf of the charity. This will help to alleviate any administrative burdens of acting.

How to appoint an attorney

Under Rule 31 of the Non-Contentious Probate Rules 1987 (NCPR), an attorney may be appointed to apply for a grant for the use and benefit of the donor, limited until further representation is granted. The attorney must be appointed by way of a legal document known as a power of attorney. HM Court & Tribunal Service's standard power of attorney forms, PA11 and PA12, may be used. Otherwise, the power of attorney must take the form prescribed in Schedule 1 to the Powers of Attorney Act 1971.

Often a power of attorney will contain a ratification clause in which the PR promises to ratify the acts of the attorney although, legally, it does not have to.

The attorney must be at least 18 years of age and have mental capacity. They can be an individual, a member of a firm or a trust corporation. The disadvantage of appointing individuals is that they may become unavailable due to illness, incapacity or death. This can result in delays and additional costs for the estate. Where possible, it is therefore advisable to appoint a trust corporation, as this is a perpetual entity, unaffected by changes in personnel.

When can an attorney take out a grant?

An attorney can be appointed by any person entitled to the grant under Rules 20, 22 and 30 of NCPR. This includes an executor appointed by the will. It also includes a person entitled to the grant of representation under rule 20 of NCPR, where there is a will but the appointment of the executor has failed or there is no executor willing or able to act. This would include a residuary beneficiary of the estate.  

It is not possible, however, for an attorney to take out a grant when there is another executor able and willing to act. This is because executors and attorneys are not entitled to the same type of grant: an executor is entitled to a grant of probate, while an attorney is only entitled to a grant of letters of administration with will annexed. In these circumstances, it would be necessary for both executors to appoint an attorney. They could each use the same attorney or appoint different ones.

It is possible to appoint more than one attorney but, in accordance with section 114 of the Senior Courts Act 1981, a grant will not be issued to more than four.

Removal of an attorney

A power of attorney can be revoked by the charity at any point, even if the attorney has already obtained the grant. This is done by way of a written notice to the attorney. The grant can then be revoked, and the charity can obtain a further grant of representation themselves (if it has trust corporation status) or can appoint a new attorney to act in the administration of the estate and obtain a grant.

An attorney can also opt to disclaim the power of attorney at any time. This must also be done by way of a written notice.

Charities without trust corporation status

If a charity has trust corporation status, it can take out a grant in its own name. If it does not, it will not be able to do so and will need to appoint an attorney, in accordance with the process set out above, if it is to obtain a grant in the estate.

Final thoughts

Acting as executor or PR comes with many benefits, including giving your charity greater control over the administration of the estate. Accordingly, charities should not shy away from taking on this role. However, if you are concerned about the administrative burden that comes with being PR, you should consider appointing an attorney to act on your behalf.

If you would like further advice regarding this or would be interested in appointing the Foot Anstey Trust Corporation Limited to act as your attorney, please contact a member of the Charity Probate team.