2. The law and practice in connection with an application for a grant of representation

Question 1

Who does the term PR relate to?

Answer 1

Executors AND Administrators

Question 2

What is a grant of representation?

Answer 2

The collective name of a Grant of Probate if their is a will or a Grant of Administration if not.

Question 3

If the deceased left a will, what representation will be used?

Answer 3

Grant of Probate

Question 4

If the deceased left a will but there are no executors willing or able to act, what representation will be used?

Answer 4

Grant of Letters of Administration with Will annexed

Question 5

If the deceased left no will, what representation will be used?

Answer 5

Grant of Letters of Administration

Question 6

When does the ownership of a deceased’s assets pass to the administrators?

Answer 6

Not until the grant of administration is made.

Question 7

When does the ownership of a deceased’s assets pass to the executors?

Answer 7

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

Question 8

Who issues the common form grants?

Answer 8

The Principal Registry of the Family Division, or by one of it’s district registries (s105 SCA 1981)

Question 9

What does common form mean?

Answer 9

That there is no dispute associated with the will

Question 10

Who issues the solemn form grants?

Answer 10

Chancery Division of the High Court, Family Court.

Question 11

What does solemn form mean?

Answer 11

That there is a dispute about the will

Question 12

Can the PR’s obtain a grant without submitting a IHT return with HMRC?

Answer 12

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.

Question 13

What must the lodged legal statement confirm?

Answer 13

• 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).

Question 14

What must additionally be submitted at the probate registry for a grant of probate?

Answer 14

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.

Question 15

What must additionally be deal with for a grant of administration?

Answer 15

The proposed administrator will have to deal with closing off.

Question 16

What is closing off?

Answer 16

• 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.

Question 17

What can someone who is suspicious about a will do?

Answer 17

Enter a caveat

Question 18

What does Enter a Caveat mean?

Answer 18

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.

Question 19

What does a warning in regards to a caveat do?

Answer 19

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.

Question 20

What happens if the warning is not responded to by the caveator within 8 days?

Answer 20

The caveat will be removed and the process can go forward.

Question 21

What NCPR rule relates to Letters of Administration with will?

Answer 21

NCPR 20.

Question 22

What NCPR rule relates to Letters of Administration without will?

Answer 22

NCPR 22.

Question 23

When may the grant be more limited at not cover all of the assets in the deceased’s estate without limitation?

Answer 23

• 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)

Question 24

What happens if a grant is de bonis non administratis?

Answer 24

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.

Question 25

What hapens if a grant is ad colligenda bona?

Answer 25

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.

Question 26

What happens if a grant is Grant pendente lite?

Answer 26

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.

Question 27

Who applies for the temporary grants of representation?

Answer 27

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.

Question 28

What are the two ways that a grant of representation (admin & probate) can be applied for?

Answer 28

- Personally by the person entitled to the grant. - Via a probate practicioner.

Question 29

What are the time limits for making an application for a grant of representation?

Answer 29

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.

Question 30

What document shows the evidence of paid tax?

Answer 30

Schedule IHT421 It will be stamped by HMRC to record that IHT has been paid, unless excepted.

Question 31

What is an excepted estate?

Answer 31

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.

Question 32

What is an IHT400?

Answer 32

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.

Question 33

What are the thresholds for an estate to the be excepted?

Answer 33

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

Question 34

What is The Direct Payment Scheme?

Answer 34

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.

Question 35

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?

Answer 35

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.

Question 36

What must the statement of truth for a grant of representation include? NCPR Rule 8(1)

Answer 36

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.

Question 37

Must the orignal will be lodge with the application (NCPR 11)?

Answer 37

Yes. Unless it has been lost, then a separate application is made under NCPR 54 to admit a substitute to probate.