Estates
The Official Solicitor may act on behalf of an estate in two capacities. Further information is available on estates and trusts section of our website.
I Under a representation order, pursuant to CPR 19.8 I Representation Order I
As personal representative
If the Official Solicitor is the personal representative of an estate, he can sue and be sued in the same way as any other personal representative. The Official Solicitor will sometimes be prepared to take out a grant to an estate to enable a potential claimant to bring proceedings, where it appears that a valid claim can be made, but where the claimant is prevented from doing so because the person entitled to take out a grant cannot be ascertained or refuses to do so.
Under a representation order, pursuant to CPR 19.8.
Where a proposed defendant has died before proceedings are issued and the cause of action survives, but no grant has been extracted to the estate, the rules provide that proceedings can be issued against the personal representatives of the deceased. Application can then be made to the court pursuant to CPR 19.8(2)(b)(ii) for a person to be appointed to represent the estate for the purpose of the proceedings. The Official Solicitor will normally consent to an appointment which is limited to accepting service only (and which enables proceedings to be issued and served where there is a limitation problem) and may consent to being appointed for the claim as a whole.
It should be noted that a limited appointment will prevent a claim going out of time but that once proceedings are settled no further step can be taken in the proceedings against the defendant until such time as an extended appointment is made for all purposes. If a judgment is required it will be necessary to have a person appointed for all purposes.
The Official Solicitor's consent should be sought before an application to the court is made; he will require evidence of the death, normally by provision of a death certificate, together with the result of an up to date probate registry search. In addition, claimants should provide evidence that they have approached any executors, beneficiaries, or relevant family members to ask if the would consent to appointment.
There is a fee of £150 + VAT for an appointment, limited to accepting service of proceedings. If an appointment is required beyond accepting service of the proceedings, provision must be made for the Official Solicitor's costs, normally by way of claimant's undertaking.
There is a similar provision in CPR 19.8(1) where a person who had an interest in a claim has died and there is no personal representative.
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Representation Order
Where proceedings concern an estate or trust of a deceasedand a person who has an interest cannot be established or found, or it appears appropriate, the Court can order a person to represent that person or class of persons, pursuant to CPR 19.7 and the Official Solicitor will be prepared to act in that capacity, subject to his costs being met from the estate or trust in question.
For further information please contact the civil litigation team on 020 7911 7136