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Administering insolvent estates

23 February 2018

When the liabilities of an estate exceed its assets, it is an insolvent estate. Solicitors acting as executors or advising personal representatives face particular problems when administering an estate which may be insolvent, and can risk personal liability if they fail to comply with the requirements of the Administration of Insolvent Estates of Deceased Person Order 1986 (Insolvent Estates Order).

This practice note offers recommendations and best practice guidelines for solicitors and personal representatives. The issues covered include:

  • who can administer an insolvent estate
  • the payment of liabilities
  • personal liability dangers
  • the problems where liabilities are uncertain

Legal status

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up-to-date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note, contact the Law Society's Practice Advice Service.

SRA Principles

There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.

When thinking about how to meet the outcomes in the SRA Code, you must consider the principles, which apply across the Handbook including the SRA Code. You should always bear in mind what the ten principles are and use them as your starting point when implementing the outcomes.

Terminology

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should - Outside of a regulatory context, good practice for most situations in the Law Society's view. In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

SRA Code - SRA Code of Conduct 2011

2007 Code - Solicitors' Code of Conduct 2007

OFR - Outcomes-focused regulation

SRA - Solicitors Regulation Authority

IB - Indicative behaviour

A glossary of other terms used throughout this practice note is available on the SRA website.

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