Administartion (pre - Grant) Flashcards
What is the grant of representation
The grant is an order of the High Court. It is necessary because it establishes the:
authority of the PRs to act (in particular, their right to collect assets and distribute the estate); and
validity of the deceased’s will, or, that the deceased died intestate.
What assets is the power conferred by the grant limited to
Those passing through the succession estate
What is the role of a PR
must collect and get in the real and personal estate of the deceased and administer it according to law
How should the PRs administer the estate
They have a statutory duty to collect in the deceased’s assets, ensure the deceased’s debts are paid and outstanding tax liabilities are met, and then to distribute assets to the beneficiaries who
are entitled (either under a will or intestacy).
When will a PR be a trustee of some/all of the estate property
the will expressly appoints the executors to act as trustees of any trust arising.
there is an intestacy; the PRs hold the estate generally “on trust with a power to sell” (s.33 AEA).
a statutory trust arises under an intestacy; the PRs will be the trustees of that trust on behalf of the minor beneficiary (s.46 AEA
What are the potentially roles of a solicitor in the administration of an estate
The solicitor has been instructed by the PRs for advice on the administration.
The solicitor has been appointed as executor under the deceased’s will.
The solicitor has been instructed to act on behalf of a party to a contentious probate matter.
What are the three main kinds of grant
Grant of probate
Grant of letters of administration (with will)
Grant of letters of administration
When are grants of probate required
The deceased left a valid will
The will appoints executors
At least one of the executors appointed is going to act
The grant of probate is issued in the name(s) of those executors who apply.
When is grant of letters of administration (with will) appropriate
the deceased left a valid will
but the will appoints no executors who are willing/able to act.
Administrators are appointed under the Non-Contentious Probate Rules 1987
(‘NCPR’). Rule 20 applies and lists, in order of priority, those entitled to apply for the grant.
When is a grant of letters of administration required
the deceased died without having made a valid will (i.e. died intestate).
This may be because they did not make a will at all, had revoked a will they did make, or the will they made is invalid.
Administrators are appointed under NPR 22 which lists, in order of priority, those
entitled to apply for the grant.
What assets can be dealt with without a grant
Assets which can be distributed under the Administration of Estates (Small Payments) Act 1965
Personal household possessions
Cash
What assets do Administration of Estates (Small Payments) Act 1965 apply to
National Savings (inc. Bank accounts, Savings Certificates and Premium Bonds)
Friendly Society and Industrial and Provident Society deposit accounts.
Arrears of salary and wages
Pensions where the deceased was a member of the police, fire authority, air force or army.
Building society accounts
There is an upper financial limit of £5,000 per asset. If the value of the asset is greater than £5,000 a grant is required to establish title to the whole sum, not just that in excess
of £5,000.
What assets pass outside the succession estate
Property owned as joint tenants (bank accounts and land)
Life policies written in trust
Discretionary pension lump sums nominated for a third party
Donations mortis casua
Assets held in a trust in which the deceased had an interest
For assets that pass outside the succession estate a grant is not needed, what will the PRs need to produce for these assets
Death certificate
Any other documentation the asset holder requires
Can banks and financial institutions release suns up to £15,000 without sight of a grant and in accordance with their own policies
Yes
Why do assets passing outside the succession estate not require a grant
Because they do not devolve on the PRs
What are the pre - grant steps to be taken by PRs
Death certificate/ funeral
Secure assets
Locate will/ codicil
Basis of distribution and identify beneficiaries
Schedule of assets and lifetime transfers
Why do PRs need official copies of the death cirtficate
PRs need official copies of the death certificate to send to institutions where the deceased held assets e.g. banks / building societies/ insurance companies.
The PRs have a duty to preserve the value of the estate, could they be personally liable to account for loss or damage to the estate assets.
Yes
Will a copy of a will/codicil suffice for the purposes of obtaining a grant
No, unless special permission has been obtained from the Probate Registry.
Therefore, At the start of the administration process the PRs should obtain the original will and any codicils
Should those entitled under the will/ intestacy be notified
Yes, should provide the beneficiaries with a realistic timescale for distribution of the estate.
Why must the PRs must complie an accurate list of the deceaseds assets and liabilities
to:
Identify and value estate assets
Identify the deceased’s creditors (to whom the PRs owe a duty as well as the beneficiaries)
Work out what steps are required to manage the distribution of the assets
Calculate the IHT due (with reference to the date of death values)
Establish whether the estate is solvent
Estimate what each beneficiary is entitled to
It is not possible to obtain the grant or calculate the IHT without this information
When should a formal probate valuation be obtained
For single items worth more than £500 or unusual items
When is an executor named in the will unable to act as a PR
pre-deceased the testator (or survived but died before taking out the grant). The will may expressly appoint a substitute executor to act in their place.
are a minor. Although a minor cannot act as PR, their appointment by will is valid. Power can be reserved to the minor who, on reaching the age of 18, can make an application later if the administration remains incomplete.
lack capacity
are the testator’s former spouse/civil partner and the divorce/dissolution took place after the will was made. By s.18A/C Wills Act 1837 the former spouse/civil partner is treated as having pre-deceased the testator and therefore cannot be appointed (unless the will expressly overrides the effect of s.18A/C).
When is an executor named in the will unable to act as a PR
pre-deceased the testator (or survived but died before taking out the grant). The will may expressly appoint a substitute executor to act in their place.
are a minor. Although a minor cannot act as PR, their appointment by will is valid. Power can be reserved to the minor who, on reaching the age of 18, can make an application later if the administration remains incomplete.
lack capacity
are the testator’s former spouse/civil partner and the divorce/dissolution took place after the will was made. By s.18A/C Wills Act 1837 the former spouse/civil partner is treated as having pre-deceased the testator and therefore cannot be appointed (unless the will expressly overrides the effect of s.18A/C).
What is the maximum number of PRs that can be named on a grant
4
When would a grant of double probate be applied for
If there are more than 4 executors, those not named on the grant can have power reserved, which means they would be able to apply at a later date if vacancy arose and the administration remained incomplete. In this case, they would apply for a grant of double probate.
When will a grant of letters of administration de bonis non be issued
Three requirements must be satisfied:
the administration is incomplete;
there are no remaining personal representatives; and
there has been a previous grant of representation.
What is the statutory order of entitlement to be appointed as administrator under a grant of letters of administration (with will), NCPR 20
A. executor;
B. trustee of the residuary estate;
C. any residuary beneficiary (whether taking absolutely or for life), or, where there is a partial intestacy, a beneficiary of the estate under intestacy;
D. the PRs of anyone in (c) other than a trustee or life tenant of the residue;
E. any other beneficiary or a creditor;
F. PRs of anyone in (e)
