3. Personal Representatives, Grants, Pre-Grant Procedures, Applying to Court, and Dealing with HMRC Flashcards
Although anyone can be named as an executor, what is it advisable to ensure?
That they are willing and able to take up the position
Whilst they can be named an executor, what two groups will not be granted probate?
- Minors
- Mental incapacity
Why does dissolution of a marriage render the appointment of a spouse ineffective?
Because the spouse is deemed to have died on the day of dissolution, unless a contrary intention is included in the will
Until when is a person free to renounce their right to a grant of probate?
Until they have accepted office
How does an executor accept office?
By either taking a grant of probate or intermeddling in the estate
What is intermeddling in the estate?
Anything which shows an intention to accept office, even notifying a deceased’s bank of the death
Someone appointed as an executor is not obliged to so act—they can renounce their role.
What are the four requirements to renounce?
- In writing
- Signed by executor
- Contain statement they have not intermeddled
- Signed by a disinterested witness
What does it mean that renunciation is all or nothing?
An executor cannot renounce part of the office, it must be all, or he must accept the appointment
Once renounced, what cannot be reclaimed without court permission?
The right to probate, i.e. can’t restart the appointment of executor
Does an executor renouncing their position as executor have any bearing on their position as trustee, if they also hold one?
No
Instead of renouncing, the executor can have power reserved. What does this mean?
They will not be involved for now, but if circumstances change, e.g. another executor dies or renounces themselves, the executor who reserved power can apply for a grant of probate at a later stage
Does the reserved power apply automatically, and what is the significance of this?
No, an application must be made to court.
Therefore, this is essentially a meaningless procedure, since an executor who renounces can always apply to the court after renouncing. The change of circumstances would merely be grounds to support the application.
On to Grants of representation:
What is a grant of representation?
A conclusive court document, authorising the deceased’s personal representatives to deal with the estate and transfer assets to the beneficiaries
Where the matter is (1) non-contentious and (2) contentious, what courts will typically have jurisdiction to grant probate?
Non-contentious: Family Division of the High Court
Contentious: Chancery Division of High Court, or County Court if below £350k
In a non-contentious case, what is the monetary threshold which must not be exceeded for property in a savings scheme to be capable of being obtained (at the institution’s discretion) with just a death certificate, i.e. grant of administration not needed?
£5,000.
Note this is the same amount from the same source that will pass outside intestacy to a chosen beneficiary in an intestate situation.
What else can be sold with just the production of a death certificate, without requiring a grant of administration or providing the right to sell?
Chattels
If the personal representatives of an estate hires a solicitor, are the PRs the client or is the estate the client?
The PRs are the client
What are the four types of grant?
- Probate
- Letters of administration with will annexed
- Letters of administration
- Grant de bonis non
When is grant of probate obtained, and only to whom can it be made?
A grant of probate is obtained when the deceased left a valid will and it can only be made to the executors
Who is entitled to act if it is a firm of solicitors that is appointed?
The partners as of the date of the will
What are the minimum and maximum amount of executors that can obtain a grant of probate?
One, and four
To whom is notice of a grant of probate generally given?
Any executors for whom power is being reserved