2. The law and practice in connection with an application for a grant of representation Flashcards
Who does the term PR relate to?
Executors AND Administrators
What is a grant of representation?
The collective name of a Grant of Probate if their is a will or a Grant of Administration if not.
If the deceased left a will, what representation will be used?
Grant of Probate
If the deceased left a will but there are no executors willing or able to act, what representation will be used?
Grant of Letters of Administration with Will annexed
If the deceased left no will, what representation will be used?
Grant of Letters of Administration
When does the ownership of a deceased’s assets pass to the administrators?
Not until the grant of administration is made.
When does the ownership of a deceased’s assets pass to the executors?
They are the legal owners from the moment of death, but still vital to obtain grant of probate to show they have eviddence that they are able to deal with the deceased’s property.
Banks and LR are unlikely to deal with the executors without sight of a grant of probate
Who issues the common form grants?
The Principal Registry of the Family Division, or by one of it’s district registries (s105 SCA 1981)
What does common form mean?
That there is no dispute associated with the will
Who issues the solemn form grants?
Chancery Division of the High Court, Family Court.
What does solemn form mean?
That there is a dispute about the will
Can the PR’s obtain a grant without submitting a IHT return with HMRC?
NO!
Must file evidence showing they have submitted their return, alongside a legal statement verified by a SoT.
If the tax has not been paid, the grant will not be issued.
What must the lodged legal statement confirm?
- That the deceased has died, the date of death and the deceased’s domicile.
- Whether the deceased died testate or intestate.
- In what manner/on what grounds the PRs are entitled to the grant.
- How much the estate is worth (gross/net)
- That IHT has been paid (submitting HMRC receipt).
What must additionally be submitted at the probate registry for a grant of probate?
The whole ORIGINAL will (including any codicils).
May only accept a copy if there is good sworn evidence that the original will has been destroyed.
What must additionally be deal with for a grant of administration?
The proposed administrator will have to deal with closing off.
What is closing off?
- The proposed administator will explain to the probate registry either that they are the first appropriate person to be admin uner rule 8(4) of the NCPR 1987; or
- That those ahead of them are either unwilling or unable to act, and why.
What can someone who is suspicious about a will do?
Enter a caveat
What does Enter a Caveat mean?
Raising a red flag with the probate registry.
Once raised, registry cannot issue a Grant of Probate until caveat is removed or expires.
Lasts 6 months, but can be renewed.
Once entered, the exectuors will respond with a warning.
What does a warning in regards to a caveat do?
Obliges the caveator to do one of the following within 8 days:
- Enter an appearance: respond, setting out their contrary interest. Must state the date of the will that their is based.
- Summons for directions: if they dont have a contrary interest - asks the court to consider whether the named executor is the appropraite person to act.
What happens if the warning is not responded to by the caveator within 8 days?
The caveat will be removed and the process can go forward.
What NCPR rule relates to Letters of Administration with will?
NCPR 20.
What NCPR rule relates to Letters of Administration without will?
NCPR 22.
When may the grant be more limited at not cover all of the assets in the deceased’s estate without limitation?
- Where there are difficulties with the proposed PR and no other PRs are available. (de bonis non administratis grant)
- Where the deceased’s property is going to waste or being list in the same way and some immediate steps needs to be taken (ad colligenda bona grant)
- When some or all of the parties intersted in the will are fighting about it in court (pendente lite grant)
What happens if a grant is de bonis non administratis?
De Bonis Non, meaning goods not administrered
Generally means that a PR has disappeared from the scene before they could complete, or start, administering the estate
Common examples where both executors have died, or a sole executor has lost capacity.
To resolve another can be appointed as either an executor or administrator.
What hapens if a grant is ad colligenda bona?
Property in danger of waste, to collect the assets.
More likely to be used is administration, can be used in probate where there is no current executor.
Assits in the period between death and full adminstration, when the PRs are not empowered to deal with the assets as they do not have title to them.
Allows to deal with a specific item to stop it going to ruin before the full administration is granted.
What happens if a grant is Grant pendente lite?
Ongoing litigation about the estate.
There will be no full grant of probate until the litigtion arise from someone’s objections is resolved.
In the mean time, this grant allows specific tasks to still be completed, such as paying the deceased’s debts or running their business.
Allows the estate to be properly manged until the court reaches their final decision.
Who applies for the temporary grants of representation?
If there is a will, the person who would be entitled to a grant of administration with the will annexed.
If there is no will, the next person to be appointed until NCPR rule 22.
What are the two ways that a grant of representation (admin & probate) can be applied for?
- Personally by the person entitled to the grant.
- Via a probate practicioner.
What are the time limits for making an application for a grant of representation?
There are no time limits.
HOWEVER, the registry as a general rule will not issues a GoP, or LoA (with will) less than 7 days after death, or a LoA (w/o will) less than 14 days after death.
What document shows the evidence of paid tax?
Schedule IHT421
It will be stamped by HMRC to record that IHT has been paid, unless excepted.
What is an excepted estate?
Excepted from the obligation to make a full tax turn to HMRC under the main tax return form (IHT400).
Still has to file a return with HMRC (IHT205), but the obligations are less arduous.
What is an IHT400?
The main tax return, used for non-excepeted estates.
Contains the full details of assets/liabilties and value of estate the date of death.
Provides the basis on which IHT is calculated.
What are the thresholds for an estate to the be excepted?
If the deceased was domiciled in the UK AND the gross value of the deceased’s estate was:
- less than the current IHR threshold (325,000); or
- less than 1,000,000 but no tax is payable because the property is passing to the deceased’s spouse, or CP, or to a charity; or
- less than 750,000 and a claim is made to transfer all of an unused NRB
What is The Direct Payment Scheme?
Where the deceased left mony in a bank/building society, there is an agreed procedure that they will electronically transfer to HMRC the amount needed to pay off any IHT liability.
PRs present IHT form 423 to the bank requesting them to do so.
What happens if the deceased’s bank cannot used The Direct Payment Scheme because it is a foreign bank. or there is not enough money in the accounts?
Two Options:
- Borrow from one the beneficiaries.
B pay pay any IHT liability from their own resources with the understnading that they are repaid the amount of the loan and their other entitlements. - Borrow from a bank or building society.
If all else fails - PR’s will write to bank setting out assets, net value and IHT liability. If provided, bank will normally ask for a undertaking from the PRs that the loan will be repaid from the first assets that become available after the grant.
What must the statement of truth for a grant of representation include? NCPR Rule 8(1)
If the applciation is for probate, the SoT must identify all testamentary documents left by deceased (codicils etc..) and confirm the dates of the documents.
Must contrain the full name of testator and any other names by which they held property, and their postcode.
Must be signed by all those making a statement - all those who wish to be executors or administrators of the estate.
Must the orignal will be lodge with the application (NCPR 11)?
Yes.
Unless it has been lost, then a separate application is made under NCPR 54 to admit a substitute to probate.
