administration (3b) : grant Flashcards
PRs unable/unwilling to act
If an executor is unable to act, what can the remaining executors do?
The remaining executor(s) can apply for the grant of probate but need to explain to the probate registry why all of those appointed by the will are not applying.
What are the three options available to an executor who is not willing to act?
• Renunciation
• Reserving power
• Appointing an attorney
What is renunciation and what must an executor sign to activate this?
An executor may formally renounce (give up) their right to apply for probate and the administration continues as though they had not been appointed.
The executor must sign a form of renunciation.
What if after renunciation, an executor decides to change their mind?
Renunciation is final and the executor cannot later change their mind without court approval.
When can an executor not renounce?
An executor cannot renounce if they have intermeddled with the estate and the court will not accept an attempt to renounce.
What is intermeddling?
A person intermeddles when they take steps indicating they have ‘accepted their appointment’ and are fulfilling the duty to administer the estate (even if they do not in fact wish to act as executor).
What are examples of intermeddling?
• ‘Obtaining, receiving or holding’ the deceased’s assets, or forgiving any debt or liability due to the estate (s 28 AEA)
• Paying debts, selling assets, disposing of personal property (under common law)
What does not amount to intermeddling?
Acts of common humanity such as arranging a funeral or taking steps to secure the estate assets do not amount to intermeddling.
When do executors reserve their power?
If an executor does not want to act initially, and will not apply for the original grant, but wants to retain the option to apply for probate later, they may reserve the power to do so.
What must happen before an executor is able to reserve power?
To reserve power there must be at least one other executor who does take out the grant of probate. The power ‘reserved’ is to apply for the same grant as originally issued i.e. there must be an original grant of probate.
If an executor has reserved power, what will they apply for if they want to act later?
Grant of double probate to run concurrently with the original grant.
When is applying for a grant of double probate only appropriate?
If the administration is not yet complete.
Can an executor who has intermeddled still reserve power?
Yes.
Where power is reserved to an executor, what must the executor(s) who are applying for probate do?
The executor(s) who are applying for probate must give notice of their intention to apply to the executor to whom power is reserved. The reservation of power is noted on the grant.
E.g. A will appoints A, B and C as executors. A does not want to act but may want to apply later. A decides to reserve power. B and C will apply for the grant of probate alone. They will give A written notice of their intention to make the application. The grant of probate, when issued, will refer to the fact that power is reserved to A and they were notified.
After the executor has obtained a grant, what maximum number of months can an executor who does not want to act, delegate their powers to an attorney?
For a maximum of 12 months.
This can be renewed if needed.
Should notice be given to other executors if an executor who does not want to act, delegate their powers to an attorney?
Yes.
If an executor who does not want to be directly involved in the administration appoints an attorney to act on their behalf before a grant has been obtained, what should the attorney apply for?
As the attorney is not named in the will they cannot apply for a grant of probate. Instead, if other executors are applying, the executors would apply for a grant of probate and the attorney would make a parallel application for letters of administration (with will).
What will be issued if there is no executor who is able or willing to act?
If there is no executor who is able or willing to act then a grant of probate cannot be issued. Instead, a grant of letters of administration (with will) would be appropriate and an administrator would be appointed under NCPR 20.
If someone with the best right to apply under NCPR 20 or 22 does not wish to act, what can they do? (administrators..?)
- Renounce
- Appoint an attorney
Unlike an executor, an administrator cannot reserve power.
What happens if a potential applicant under NCPR 20 or 22 renounces their right?
Renunciation is final. A form of renunciation must be signed and submitted to the probate registry with the application for the grant. The renunciation will be noted on the grant.
When can a potential applicant under NCPR 20 or 22 renounce their power?
A potential administrator may renounce at any time before the grant is issued.
The difference between executors and administrators in this regard is that Administrators are not prevented from renouncing even if they have intermeddled with the estate.
Can a potential applicant under NCPR 20 or 22 renounce even after intermeddling with the estate?
Yes.
Does an executor who renounces their right to apply for a grant of probate, automatically renounce their right to apply as administrator under NCPR 20/22?
No- so they may need to renounce both rights.
After the administrator has been appointed under the grant, what maximum number of months can an administrator who does not want to act, delegate their powers to an attorney?
Maximum of 12 months.
This can be renewed if needed.
