3. Personal Representatives, Grants, Pre-Grant Procedures, Applying to Court, and Dealing with HMRC

Question 1

Although anyone can be named as an executor, what is it advisable to ensure?

Answer 1

That they are willing and able to take up the position

Question 2

Whilst they can be named an executor, what two groups will not be granted probate?

Answer 2

1. Minors (parents can apply on their behalf, but deprioritised vs adult applicants)
2. Mental incapacity

Question 3

Why does dissolution of a marriage render the appointment of a spouse ineffective?

Answer 3

Because the spouse is deemed to have died on the day of dissolution, unless a contrary intention is included in the will

Question 4

Until when is a person free to renounce their right to a grant of probate?

Answer 4

Until they have accepted office or intermeddled

Question 5

How does an executor accept office?

Answer 5

By either taking a grant of probate or intermeddling in the estate

Question 6

What is intermeddling in the estate?

Answer 6

Anything which shows an intention to accept office, even notifying a deceased’s bank of the death

Question 7

What are the four requirements to renounce?

Answer 7

1. In writing
2. Signed by executor
3. Contain statement they have not intermeddled
4. Signed by a disinterested witness

Question 8

What does it mean that renunciation is all or nothing?

Answer 8

An executor cannot renounce part of the office, it must be all, or he must accept the appointment

Question 9

Once renounced, what cannot be reclaimed without court permission?

Answer 9

The right to probate, i.e. can’t restart the appointment of executor

Question 10

Does an executor renouncing their position as executor have any bearing on their position as trustee, if they also hold one?

Answer 10

No

Question 11

Instead of renouncing, the executor can have power reserved. What does this mean?

Answer 11

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 double probate at a later stage

Question 12

Does the reserved power apply automatically, and what is the significance of this?

Answer 12

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.

Question 13

On to Grants of representation:

What is a grant of representation?

Answer 13

A conclusive court document, authorising the deceased’s personal representatives to deal with the estate and transfer assets to the beneficiaries

Question 14

Where the matter is (1) non-contentious and (2) contentious, what courts will typically have jurisdiction to grant probate?

Answer 14

Non-contentious: Family Division of the High Court
Contentious: Chancery Division of High Court, or County Court if below £350k

Question 15

In a non-contentious case, what is the monetary threshold which must not be exceeded for property in a savings scheme/bank account to be capable of being obtained (at the institution’s discretion) with just a death certificate, i.e. grant of administration not needed?

Answer 15

£5,000.

Note this is the same amount from the same source that will pass via intestacy to a chosen beneficiary in an intestate situation.

Question 16

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?

Answer 16

Chattels

Question 17

If the personal representatives of an estate hires a solicitor, are the PRs the client or is the estate the client?

Answer 17

The PRs are the client

Question 18

What are the four types of grant?

Answer 18

1. Probate
2. Letters of administration with will annexed
3. Letters of administration
4. Grant de bonis non

Question 19

When is grant of probate obtained, and only to whom can it be made?

Answer 19

A grant of probate is obtained when the deceased left a valid will and it can only be made to the executors

Question 20

Who is entitled to act if it is a firm of solicitors that is appointed as executor?

Answer 20

The partners as of the date of the will

Question 21

What are the minimum and maximum amount of executors that can obtain a grant of probate?

Answer 21

One, and four

Question 22

To whom is notice of a grant of probate generally given?

Answer 22

Any executors for whom power is being reserved

Question 23

When is an application for letters of administration with the will annexed made?

Answer 23

When there is a valid will, but some problem concerning the appointment of any executors

Question 24

What are three of the reasons for which a letters of administration with the will annexed may be needed?

Answer 24

1. Appointment of executor not correctly drafted
2. Will is valid, but deceased did not appoint an executor
3. Executor died before the deceased, renounced, or is unable (minor/incapable) or unwilling to act

Question 25

What is the order of entitlement to a grant of letters of administration with the will annexed?

Answer 25

1. Trustee of residuary estate, if any
2. Other residuary beneficiary or their PRs, with vested having priority over contingent
3. Any other beneficiary or creditor, or their PRs

Question 26

In what situation will a beneficiary not be entitled to apply for a grant of letters of administration with the will annexed?

Answer 26

If the gift fails due to the beneficiary or their spouse witnessing the will.

However, they can still apply in a different capacity, e.g. as a person entitled on partial intestacy.

Question 27

What is the minimum number of administrators required where there is a minor beneficiary, or life interest under the will?

Answer 27

Two

Question 28

In contrast to executors under probate, in a letters with will annexed situation, what will not cause the right to renounce to be lost, and why?

Answer 28

Intermeddling in the estate, because there are creases to be ironed out with regard to how the estate should be administered, so it is not possible for a role to crystallise by intermeddling

Question 29

What is meant by a person applying for letters of administration with the will annexed to clear off?

Answer 29

It means that in the application, the person applying has accounted for those having a superior right to the grant, e.g. by confirming their disinterest or renunciation

Question 30

Who does not need to be cleared off?

Answer 30

People in the same category of entitlement as the applicant.

Question 31

When is an application for just letters of administration [without will] made?

Answer 31

If the deceased dies intestate or leaves a will but all the gifts have failed

Question 32

What is the order of entitlement for letters of administration?

Answer 32

Broadly the same as for intestacy, but also including issue of parties if party has predeceased:

1. Surviving spouse
2. Deceased’s issue*, and their issue if predeceased
3. Parents
4. Full siblings*, and their issue if predeceased
5. Half siblings*, and their issue if predeceased
6. Grandparents
7. Full uncles/aunts*, and their issue if predeceased
8. Half uncles/aunts*, and their issue if predeceased
9. The Crown
10. Creditor of the deceased

Question 33

What is the right to a grant of a PR representing someone with an entitlement to a grant?

Answer 33

The same as the person they represent

Question 34

However, unless the spouse was beneficially entitled to the estate, who has priority over the PRs of a surviving spouse who died before obtaining a grant of letters of administration [without will]?

Answer 34

All the relatives in the list, i.e. issue down to half uncles/aunts

Question 35

What is the minimum number of administrators required (1) generally, and (2) where there is a minor beneficiary or life interest under the will, and what is the maximum number of administrators?

Answer 35

1. One
2. Two
3. Four

Question 36

Do the clearing off rules which apply to letters of administration with the will annexed also apply to letters of administration?

Answer 36

Yes

Question 37

What is a grant de bonis non and to whom is it granted?

Answer 37

A second grant made to allow the completion of the administration of the deceased’s estate following the death of the sole or last surviving PR, and is granted to the person who would have been entitled had the original PR never taken the grant

Question 38

What is the exception to this where a grant de bonis non will not be required, and logically when does this not apply, and why?

Answer 38

In a chain of representation situation, where the sole or last surviving executor dies and that executor’s executor takes a grant of probate, the executor of estate B will automatically take over the execution of estate A. They are not able to refuse this so any answer choice suggesting renunciation in a chain of representation situation is wrong.

Logically this cannot apply where the deceased in estate A dies intestate, because there is no executor in this situation. There is an administrator and this exception will not apply, so a grant de bonis non will be needed.

Question 39

In relation to all grants, what occurs where one of the executors/administrators is a minor/mentally incapacitated and there are other executors/administrators?

Answer 39

The grant is made to the adult PRs with power reserved for the minor in the case of a grant of probate

Question 40

In relation to all grants, what occurs where the sole or last surviving PR is a minor/mentally incapacitated?

Answer 40

A limited grant of letters of administration is made to the minor’s parent or guardian for the use and benefit of the minor until aged 18

Question 41

On to pre-grant procedure:

What must be paid by the PRs before a grant can be obtained?

Answer 41

Inheritance tax due on the estate, wait 20 days after filing IHT 400 before making the probate application

Question 42

What is the voluntary scheme banks and institutions can agree to concerning release of estate funds?

Answer 42

In their discretion, the deceased’s bank can release the money owed to HMRC to satisfy the inheritance tax before a grant. If the account is worth <=£5k this is allowed by statute

Question 43

On to applying to the court:

What form is used (1) for probate or administration with will annexed and (2) for administration without a will?

Answer 43

1. Form PA1P
2. Form PA1A

Question 44

What are the three things which must be confirmed in the legal statement at the end of Form PA1P for probate or administration with will annexed?

Answer 44

Applicants will:

1. Deal with the estate in accordance with law
2. Keep account of the estate and distributions
3. Provide Probate Registry with estate accounts and return the grant, if requested

Question 45

In order to apply for administration without a will using Form PA1A, what must the applicant have?

Answer 45

A beneficial interest in the estate under the intestacy rules

Question 46

When is a citation to take probate used?

Answer 46

When an executor has lost their right to renounce due to intermeddling, but has not applied for a grant and does not intend to do so

Question 47

What must the executor in question do once cited, and what occurs if they refuse?

Answer 47

They must make an application for a grant of probate, and if they fail to do so, the citor can apply for a court order allowing the executor to be passed over

Question 48

What is a citation to accept or refuse a grant used for?

Answer 48

To clear off a person with a prior right to any type of grant who has not applied and shows no intention of applying

Question 49

What occurs if after a citation to accept or refuse a grant, the cited person still refuses?

Answer 49

A grant may be issued to the citor

Question 50

Within how long after the end of the month of the deceased’s death must PRs deliver an account to HMRC?

Answer 50

12 months

Question 51

However, from when does interest on inheritance tax due begin to run?

Answer 51

Six months from the end of the month of the deceased’s death

Question 52

What is the discount in the market value for tax purposes offered by HMRC in the case of co-owned (1) residential property and (2) investment property, in recognition of the difficulty in selling a part interest in land?

Answer 52

1. 15% for residential
2. 10% for investment

Question 53

In what situation is the co-owned property discount from HMRC not available?

Answer 53

Where the property is co-owned by a spouse or civil partner

Question 54

What are the two general exemptions from inheritance tax for estates of UK domiciliaries, such that an account need not be made?

Answer 54

Estates which do not exceed:

1. Nil rate band of £325k, or
2. £3 million, and the net chargeable estate does not exceed the NRB (does not apply if over £100k in foreign assets)

Question 55

What two conditions must be met for an estate that uses the transferrable nil rate band (i.e. takes part of all of a predeceased’s spouses NRB), to qualify as an excepted estate?

Answer 55

1. Estate value is less than twice the NRB, and
2. Unused NRB from a predeceased spouse can be transferred to the deceased

Question 56

To what extent only is the UK estate of a non-UK domiciliary excepted?

Answer 56

If their UK estate consists solely of cash or quoted shares not exceeding £150k

Question 57

How much must the deceased have given away in the last 7 years before they died for their estate to not be excepted, where it otherwise would be?

Answer 57

Over £250k