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Wills & Administration of Estates (V) > Administration: Application for a grant > Flashcards

Administration: Application for a grant Flashcards

1
Q

What are the pre-grant steps taken in administration? Will PRs or solicitors be involved in these?

A

In no chronological order:

  • Death certificate/funeral
  • Secure estate assets
  • Locate will/codicil
  • Basis of distribution and identify Bs
  • Schedule of assets and lifetime transfers

PRs not necessarily involved (some carried out by relatives) - and solicitors more likely to advise on technical/legal rules re administration rather than early practical steps

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2
Q

Is there a legal obligation to follow funeral wishes set out in will instructions?

A

No - only moral obligation

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3
Q

How is the funeral paid for? What is its effect on IHT? Is death registered before or after funeral?

A
  • Funeral is a post-administration expense (unless insurance or pre-paid)
  • Can be taken into account when calculating IHT
  • Death must be registered before funeral
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4
Q

What will PRs need death certificate for? How are GOV orgs notified of death?

A
  • To send to institutions where deceased holds assets e.g. bank
  • GOV orgs (HMRC, DVLA, DWP) notified through centralised service when death is registered
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5
Q

Who must secure the estate assets and what does this involve? What happens if they fail to do this?

A
  • PRs have duty to preserve value of estate i.e. ensure valuable items/docs are safe, secure vacant property and notify insurers, notify DVLA
  • If there is loss or damage to estate assets, PRs may be personally liable
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6
Q

Will a copy of the will suffice for obtaining a grant?

A

Unless special permission obtained from Probate Registry, the original will must be used

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7
Q

What should PRs check the will for?

A

Check it is valid i.e. no obvious failings with drafting + any documents incorporated obtained

Codicil reviewed same; makes sense when read together

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8
Q

If the deceased seemingly died intestate, what should PRs do?

A

Make enquiries to confirm this before proceeding with administration i.e. if evidence a will made but cannot be located, PRs need to find out what happened (revoked or lost)

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9
Q

What must happen if a will has been lost?

A

Appropriate steps must be taken to re-construct it

There are commercial organisations which charge a fee for operating a search service against a national wills register (entirely optional to register a will on the national register)

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10
Q

Is the will a public document?

A

Only once grant is issued - before a grant is obtained only appointed executors are legally entitled to see will

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11
Q

Once Bs are identified, what should PRs provide them with?

A

Realistic timescale for distribution of estate

Best to manage expectations from start

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12
Q

Why must PRs compile accurate list of deceased’s assets and liabilities?

A
  • Identify and value estate assets
  • Identify deceased’s creditors (to whom PRs owe a duty)
  • Work out steps required to manage distribution
  • Calculate IHT due
  • Establish whether estate is solvent
  • Estimate what each B entitled to
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13
Q

What values are referenced when calculating IHT?

Date

A

Date of death

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14
Q

What must be done to create a complete list of assets and liabilties?

Not uncommon to start with theoretically complete lists and later discover new assets no one knew about

A
  • Ask family members to prove information about D’s assets
  • Contact organisations to find out where D had dealings
  • Search D’s home for evidence e.g. bank statements, insurance policy docs
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15
Q

Why should PRs contact appropriate organisations once schedule of assets and liabilities prepared?

A
  • Notify them of death and provide death certificate
  • Request confirmation of value of asset at date of death
  • Request instructions on how to close an account/transfer ownership of items to PRs
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16
Q

How to establish the value of (joint) bank accounts?

A
  • Request from bank a summary of account balance on date of death plus accrued interest
  • For joint - find out what proportion owned by deceased (usually 50/50)
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17
Q

Can the value of chattels always be estimated?

Value = what they would fetch if sold

A

Yes except for single items worth more than £500/unusual items where formal probate valuation should be obtained

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18
Q

How to establish the value of private company shares/partnership interests/sole trader business?

A

Specialist valuer usually instructed

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19
Q

How to establish the value of (quoted) shares?

A
  • Quoted = linked to stock exchange prices on date of death
  • Shares (through financial srvices company) = broker can provide date of death values
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20
Q

How to establish the value of land? What should be done if land owned jointly?

A
  • Estate agent - usually more than one used then average will be used
  • If land owned jointly: value of deceased’s share should be established (Land Reg official copies to see how property owned)
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21
Q

Do debts owed by the D continue following death?

A

Yes, PRs stand in position of deceased and mus make repayment

Often evidence in the form of credit card statements and loan documents/utility or phone companies notified of death and can provide summary accounts due to be paid/refunded

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22
Q

Will debts always reduce the value of estate for IHT purposes?

A
  • Debt owed by deceased is never actually repaid from estate funds (e.g. to family member)
  • Deceased borrowed money to finance purchase of IHT excluded asset
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23
Q

What information about lifetime transfers should the PRs establish?

A
  • Nature of transfer
  • Date made
  • Amount or vaue
  • Identity of the donee
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24
Q

From where will an executor and administrator derive authority?

A
  • Executor: from will
  • Administrator: from grant
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25
Q

What is the minimum and maximum number of executors? What if over maximum is named?

A
  • At least 1 (but common to have 2)
  • Maximum of 4 named on grant (if more - must decide who is to take out grant)
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26
Q

What must happen if more than one executor is appointed but they do not all apply for grant of probate?

A

Applicants must explain to probate registry why others are not applying (e.g. provide death certificate)

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27
Q

What does it mean for power to be reserved for remaining executors?

A

Where over 4 named - can apply at later date if vacancy arose and administration incomplete - would apply for grant of double probate

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28
Q

What happens if one of the PRs dies before administration is complete? What happens if the remaining number of PRs is below the minimum?

(After grant has been taken out)

A
  • The remaining PRs may continue with administration
  • If remaining is below minimum = additional PR can be appointed
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29
Q

What happens if the sole/last surviving PR dies before administration is complete?

A

Either

  1. Chain of representation applies
  2. Grant of letters of administration de bonis non is issued
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30
Q

When will the chain of representation apply and how does it work?

A

If the last surviving executor dies and has appointed an executor of their own estate, once this executor takes out a grant of probate (of the deceased executor) they will automatically become executor of the original testator’s estate (as well as the last surviving executor)

A testator (T) dies leaving a will in which he appoints his civil partner (CP) as his sole executor. CP takes out a grant of probate for T’s estate but subsequently dies before completing the administration. CP made a will appointing his daughter (D) as his sole executrix.

  • T’s sole executor (CP) has died, appointing their own executor (D). If D takes out the grant of probate for CP’s estate the chain of representation is complete and D can complete the administration of T’s estate.
  • No additional grant is required. The grant of probate issued to D for CP’s estate is sufficient together with the grant of probate issued to CP in T’s estate.
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31
Q

What additional grant is needed for a chain of representation? Does the same apply for administrators?

A
  • No additional grant is needed
  • Chain of rep does not apply when administrators are acting
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32
Q

When will a grant of letters of administration de bonis non be issued? What are the 3 requirements to be satisfied?

A
  • Will be issued if chain of representation cannot operate a second grant
  • 3 requirements: administration incomplete; no remaining PRs; and there has been a previous grant of representation
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33
Q

What is the difference between a grant of letters of administration (with will) and grant of letters of administration?

A
  • With will = where deceased left valid will but no executors willing/able to act
  • Other = deceased died intestate (without a valid will i.e. never made, revoked, invalid)
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34
Q

Where there is a grant of letters of administration (with will), who will be appointed and from where does the entitlement to apply derive?

A
  • Administrators (not executors) are appointed
  • Entitlement to apply derives from Rule 20 NCPR (not the will!)
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35
Q

What is the statutory order of entitlement to be appointed as administrator under a grant of letters of administration with will?

Under NCPR 20

A
  1. Executor
  2. T of residuary estate
  3. Any residuary B (whether taking absolutely or for life), or where there is a partial intestacy the B of the estate under intestacy
  4. PRs of anyone in last category other than a T or life tenant of residue
  5. Any other B or a creditor
  6. PRs of anyone in last category

Entitlement to grant correlates with distribution of estate under will and not familial relationship with deceased

El nino
TRied
RB Rabona-ing
PRs Pepe Reina
B or C but couldn’t
PRs properly

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36
Q

When is the only time someone in a lower category can apply? What must they do when they do apply?

A
  • Where nopersons in category above are able and willing to act as administrator
  • Must ‘clear off’ someone with better right to apply; explain why they are not applying

E.g. T of residue cannot apply if there is an executor willing/able to act

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37
Q

What happens if there is more than one person in the same category? Must they clear-off?

A
  • They have an equal right to apply (but B with vested preferred to B with contingent)
  • Do not need to clear-off
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38
Q

Where there is a grant of letters of administration, who will be appointed and from where does the entitlement to apply derive?

A
  • Administrators are appointed
  • Entitlement to apply derives from Rule 22 NCPR
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39
Q

What is the statutory order of entitlement to be appointed as administrator under a grant of letters of administration? What happens if no one can apply?

Under NCPR 22

A
  1. Surviving spouse or CP
  2. Children of deceased
  3. Parents of deceased
  4. Whole blood siblings
  5. Half-blood siblings
  6. Grandparents
  7. Uncles/aunts of whole blood
  8. Uncles/aunts of half blood

If no one can apply = bona vocantia or creditor/person who does not receive benefit (but would have done if estate larger) may apply

Entitlement to grant correlates with entitlement to estate under intesatcy

Spouse + Children…
Please
Sign
Grandpa
Ur
Collapsing

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40
Q

How are the orders in NCPR 20 (with will) and NCPR 22 (no will) differentiated in terms of entitlement to grant?

A
  • NCPR 20 order correlates with distribution of estate under will
  • NCPR 22 order correlates with entitlement to estate under intestacy
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41
Q

What rules that apply to NCPR 20 also apply to NCPR 22?

A
  • Person in lower category cannot apply in priority to someone in higher
  • Those in same category have equal right
  • All applicants must ‘clear off’ anyone with better (but not equivalent) right to them
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42
Q

Can a PR of an applicant who survived the deceased but died before taking a grant apply on their behalf?

A

Yes - but application from living person in same category preferred

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43
Q

What are 2 the conditions if an applicant decides to apply under NCPR 22?

A
  1. Must demonstrate nature of their familial relationship with deceased
  2. Must have a beneficial entitlement under the estate

Commonly, the applicant next in order to apply will have an entitlement to the estate, but this will not always be the case…

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44
Q

Regarding beneficial entitlement, what happens if no one in a category in NCPR 22 can apply because they do not have it?

E.g. A man dies intestate leaving an estate worth £200,000. The man is survived by his spouse and two adult children.

  • If spouse chooses not to apply, theadult children are the next category entitled (b), but the value of the man’s estate is less than the statutory legacy (£322,000) so the whole estate passes to the spouse = children have no beneficial entitlement (and neither will anyone below them!)
A

A person with no immediate entitlement may apply provided they would have benefitted if the estate were larger

E.g. As the children would have taken a share of the estate with the spouse if the man’s estate was more valuable = are able to apply

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45
Q

What happens where an application is made by an adult with entitlement as well as an application made on behalf of a minor (who is entitled under the category)?

A

Application by adult will be given priority

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46
Q

When would an application by a minor be appropriate?

A
  • Where no adult with equal/greater entitlement will act; or
  • Minor is only person within category having greatest entitlement or all those within category are minors
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47
Q

What is the minimum and maximum number of administrators?

For both types of administrator grant

A

Minimum one, maximum 4

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48
Q

When will 2 administrators be required?

A

Where there is a minor or a life interest in the estate

i.e. two are needed if any part of the estate is passing to a minor beneficiary or is to be held on a life interest trust

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49
Q

What happens where 2 administrators are required but the only one able/willing has the best entitlement to apply?

A

The person may apply for the grant with someone from the next category of entitlement

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50
Q

When will a named executor be unable to act as PR?

A
  • Pre-deceased testator
  • Are a minor (but can make application on turning 18 if administration incomplete)
  • Lack capacity
  • Are former spouse/CP and divorce took place after will made (unless express provision)
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51
Q

Can remaining executors still apply for probate if another executor is not willing to act?

A

Yes, but must explain to probate registry why those appointed are not applying

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52
Q

What are the 3 options available for an executor who is unwilling to act?

A
  1. Renunciation
  2. Reserving power (can be taken out for other people)
  3. Appointing an attorney
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53
Q

What is the effect of renunciation, what must be done to renunciate, and what if they change their mind?

A
  • Effect = administration continues as though they had not been appointed
  • Must sign form of renunciation which is submitted to probate registry by those applying for grant as evidence
  • As renunciation is final - executor must seek court approval if they change their mind
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54
Q

What is intermeddling and what is the consequence on renunciation?

A
  • Intermeddling = taking steps to indicate they have ‘accepted appointment’ and fulfiling duty to administer estate (even if they do not wish to)
  • If they have intermeddled, they cannot renounce
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55
Q

What counts as intermeddling and what does not?

A
  • Counts = paying debts, selling assets, disposing of personal property
  • Does not count = acts of common humanity (arranging funeral, taking steps to secure assets)
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56
Q

When would an executor reserve power and what is the effect? What do they do when it comes round to applying for a grant?

A
  • If they do not want to act initially and will not apply for original grant - but wants to retain option to apply for probate later
  • Effect of reserving power = can apply for same grant as originally issued; can apply for grant of double probate to run concurrently with original grant

Can only apply for GODP if administration incomplete

Reserve power = 2 words = double = (grant of) double probate

57
Q

What are the conditions of reserving power?

A

There must be at least one other executor who does take out the grant of probate

58
Q

What are the consequences of intermeddling on reservation of power?

A

None - can still reserve power if you have intermeddled

59
Q

What form must be used for reserving power? What must other executors do?

A
  • No form for reserving power (but will be noted on grant)
  • Applying executors must give notice of intention to apply for grant to executor to whom power is reserved
60
Q

Can an executor appoint another person as attorney to act on their behalf only before or after grant obtained?

I.e. power given by executor (donor) to attorney (donee)

A

Either….

  1. After the executor has obtained a grant
  2. Before grant has been obtained
61
Q

If an executor appoints an attorney after the grant is obtained, for how long can they delegate functions for, what must they give to other executors and what can attorney do once appointed?

A
  • Maximum of 12 months (can be renewed if needed)
  • Must give notice to other executors
  • Once appointed - attorney can carry out administrative steps on behalf of donor
62
Q

If an executor appoints an attorney before a grant is obtained, how does attorney apply for grant of probate?

A

They cannot as attorney is not named in the will as executor - must instead make a parallel application for letters of administration (with will)

Whilst other executors apply for grant of probate

The power of attorney must be provided to the probate registry as part of the application.

63
Q

What happens if all executors are unable or unwilling to act?

A

A grant of probate cannot be issued and a grant of letters of administration (with will) would be appropriate; administrator appointed under NCPR 20

A will appoints X and Y executors. The whole estate passes to Z absolutely.
X died many years before the testator. Y wants to renounce.

No grant of probate will be issued. Instead, Z will apply as administrator under NCPR 20 for a grant of letters of administration with will.

64
Q

When can a person not act as administrator?

A

Same as executor…

  • Pre-deceased testator
  • Are a minor (but can make application on turning 18 if administration incomplete)
  • Lack capacity

But also…

  • Do not have beneficial entitlement to estate (for appointments under NCPR 22 - no will - only)
65
Q

Does an administrator, who is unwilling to act, have the same options as an unwilling executor?

A

Can renunciate or appoint attorney, but cannot reserve power

66
Q

How will an administrator renounce? Is this final?

A
  • Will sign form of renunciation and submit to probate registry along with application for grant (on which renunciation will be noted)
  • Is final
67
Q

What is the effect of intermeddling for the renunciation of an administrator?

A

No effect! Can renounce even if they have intermeddled

Can renounce any time before grant issued

Intermeddling only applies to executors and not administrators

68
Q

If an executor renounces their right to apply for grant of probate, does this mean they automatically renounce their rights to apply as an administrator?

A

No - so may have to renounce both rights

69
Q

What are the differences between executors and administrators in appointing an attorney?

A
  • For after administrator has been appointed = same rules (12 months subject to renewal, give notice to other administrators etc.)
  • For before grant is obtained = (administrator) applicant delegates power to apply for grant, so power of attorney should be provied to probate registry as part of application (rather than a parallel application made)
70
Q

Can a PR who is entitled to act but decides not do, do nothing?

A

No - they must take formal steps to give up their right to apply so others can proceed

71
Q

What happens if those entitled to apply refuse to act but also refuse to renounce their right to apply? Or executor intermeddles with estate but refuses to apply for grant?

A

A court direction can be obtained (using citation process) to: require a person to take out grant, remove rights to apply, authorise another person to take on administration

72
Q

In the account they deliver to HMRC, what 2 things should the PRs specify?

A
  1. All property comprising deceased’s taxable estate immediately befroe death and value of each item at date of deah (list of assets and liabilities)
  2. The exemptions and reliefs that apply

Provides basis upon which IHT due (if due)

73
Q

What is the deadline for a) submitting the account and b) for paying IHT? What happens after the deadline for paying IHT? When will these things be done practically?

A
  • Account = 12 months from end of month in which death occurred
  • IHT = 6 months from end of month in which death occurred (after which interest becomes payable on unpaid tax)

In practice - PRs submit account and pay IHT due ASAP because grant wll not be issued until then (which is needd to administer estate)

74
Q

Can IHT be paid in instalments for all types of assets? How many instalments can be used and when is the first deadline?

A

IHT due in respect of certain assets can be paid by 10 equal instalments - first instalment due by usual deadline (6 months) and remaining due on each subsequent anniversary date (on which interest is charged)

I.e. certain assets (not whole estate)

If interest charges would be incurred; instalment option would usually be used only if needed and only for as long as required.

75
Q

Why would the instalment option for tax be needed?

A
  • If there are insufficient liquid assets available prior to grant being issued to pay full amount due
  • To avoid/delay sale of qualifying assets - e.g. family home - which would otherwise be needed if value of other assets insufficient to meet IHT liability
76
Q

For what assets is the instalment option available for? What if property does not qualify?

A
  • Land and buildings
  • Company shares/securities giving deceased control
  • Some unquoted company shares/securities that did not give control but where payment cannot be made without undue hardship
  • Farms or interest in farming business
  • Business or interest in business
  • Timber

If no qualify = IHT should be paid in full by usual deadline

77
Q

What is the consequence if any property to which instalment option applies is subsequently sold?

A

Instalment option ceases and outstanding IHT on that property is due immediately and sale proceeds available to meet htis liability

78
Q

What form is used by PRs to report to HMRC about estate assets and liabilities?

A

IHT I400

79
Q

When will a IHT 400 not be used and what happens instead?

A
  • IHT 400 not required if estate is excepted
  • Instead PRs should provide information re value of estate as part of application for grant of representation (key info then sent by Probate Registry to HMRC)

NB that IHT 400 to HMRC and application for grant to Probate Registry are different things - if estate is excepted, then essentially skipping the first part

80
Q

What are the two categories of excepted estate? What if neither apply?

A
  1. Low value excepted estate
  2. Exempt excepted estate

If neither apply = estate not excepted

81
Q

What makes an estate a low value excepted estate?

A

No IHT payable because the gross value of the estate is below the NRB (and TNRB)

A woman dies leaving her estate to her daughter. She made no lifetime gifts and had no debts. The woman’s civil partner (CP) died before her and did not use any of her own NRB.

  • The woman’s estate includes her home (£600,000), bank account (£2,000) and car (£1,500). The total (gross) value is £603,500.
  • CP did not use her own NRB so it can be transferred in full to the woman’s estate - which qualifies for the woman’s own NRB and a TNRB.
  • The value of the woman’s estate is below £650,000 (2xNRB) so the whole of the estate is taxed at 0% and no IHT is payable.
82
Q

What does ‘gross value’ of estate mean in context of low value excepted estate?

A
  • Total taxable estate figure +
  • Value of specified transfers (chargeable transfers made in 7 years before death) +
  • Value of specified exempt transfers (exempt gifts to spouses, charity)

Basically the value of everything before deducting debts and exemptions + transfers (remember it is the gross value!)

83
Q

Where does the RNRB fit in to low value excepted estates?

A

It is not considered - if claimed, estate cannot be excepted

84
Q

What makes an estate an exempt excepted estate?

A

Gross value of estate is no more than £3m but no IHT is payable because after debts are deducted and spouse/charity exemption (only) applied the net value of estate is below NRB

Exempt = debts x exemption (2 things!)

A man dies leaving his estate worth £3.5M to his spouse. No IHT is payable because the whole estate passes to his spouse and is exempt.

  • However, this is not an exempt excepted estate because the value of the estate is more than £3 million.

A woman dies leaving her estate worth £400,000 equally between her spouse and children. The value of the spouse exemption is £200,000 and once this is taken into account the remaining £200,000 falls within the NRB and is taxed at 0%. No IHT is payable.

  • This will be an exempt excepted estate.
85
Q

If debts alone and no exemption bring down net value of estate to below NRB, will it still be an exempt excepted estate?

A

No - debts alone cannot bring estate into exempt excepted status!

Neither can other things e.g. BPR

A man dies leaving his estate worth £400,000 to his son. After BPR is applied the value of the estate is £50,000. No IHT is due as all of the estate falls within the NRB.

  • However, this is not an excepted estate because although the estate is worth less than £3M and no IHT is due, this is only because of BPR - and BPR cannot be considered for these purposes.
86
Q

If no IHT is due, does that mean an estate will automatically be an excepted estate?

A
  • No! Can have no IHT due but still not be an excepted estate e.g. other exemptions (like BPR) bring below NRB)

I.e.brought below NRB but not because of relevant exemptions

87
Q

What is the effect of not being an excepted estate?

A

Must complete form IHT 400

88
Q

What is the difference between the two categories of excepted estates?

Summary

A
  • Low value = no IHT payable because gross value of estate is below NRB
  • Exempt = gross value no more than £3m but no IHT payable because after debts deducted and spouse/charity exemption applied the net value of estate is below NRB
89
Q

What are other factors that may stop an otherwise excepted estate being excepted?

A
  • Deceased made GROB that subsists at death
  • Estate includes either more than 1 trust asset or a single trust interest worth more than £250k not passing to spouse
  • Foreign assets worth more than £100,000
  • Value of specified transfers exceeds £250,000
  • Claim for RNRB is being made
90
Q

Do the factors deciding whether estate excepted or not determine the distribution of the estate or calculation of IHT due?

A

No! Are considered for purposes of deciding whether to complete form IHT 400 - if estate excepted = no form must be sent

91
Q

What is contained in an IHT 421?

This should also be completed

A

Details about deceased and summary of gross/net succession estate (assets passing under grant rather than IHT estate)

92
Q

Which values are relevant when completing IHT 400?

And for IHT purposes

A

Date of death values

93
Q

What happens to an IHT 400 if the values of assets change post death?

A

Not recorded for the purposes of an IHT 400

94
Q

What is the corrective account form and when should it be used?

A
  • Form C4
  • Used if PRs discover later that date of death information provided in IHT 400 was inaccurate and too much/little IHT has been paid (which must be corrected)

C4 = CA = Corrective Account

95
Q

What is the C4 used to inform HMRC about?

A
  • Additional assets/liabilities discovered after IHT 400 submitted
  • Corrections to value of assets/liabilities in original IHT 400
  • Changes to exemptions/reliefs applied (e.g. not claimed or not due)
  • Variation of original B entitlements (e.g. in what exempt B receives)
96
Q

What is the impact of the discovery of new assets and liabilities on IHT?

  • Discovery of new assets same effect as original value of asset too low, liability to high, or reliefs mistakenly claimed
  • Discovery of new liabilities same effect as original value of asset too high, liability too low or reliefs due not claimed
A
  • New assets discovered = total value of taxable estate increases and PRs should pay additional IHT due when sending HMRC C4
  • New liabilities discovered = total value of taxable estate decreases and PRs claim refund on IHT paid
97
Q

What are the 2 options available to a PR for raising funds to pay for IHT?

A
  1. Direct Payment Scheme
  2. Borrowing
98
Q

How does a Direct Payment Scheme work? What schedule must be completed?

A
  • Banks/building society can make direct payment from deceased’s account(s) to HMRC
  • Schedule IHT 423

As institutions cannot release amount of funds to PRs prior to issue of grant

99
Q

How does borrowing work?

A

Main B of estate funds payment of IHT with funds outside of succession estate/for which grant not required (e.g. money held in a joint bank account which passed by survivorship or proceeds of a life policy written in trust)

100
Q

What is a professional application and what are the 3 categories and what will each be used for?

A

Application made by solicitor/probate practicioner (appointed by PRs or instructed by them)
1. Mandatory online application (most grants of probate)
2. Online application possible but not mandatory (simple applications under NCPR 20 and 22)
3. Mandatory paper application (more complicated NCPR 20 and 22 applications)

I.e. application made online or by PA1A/PA1P (paper form)

101
Q

What other non-standard grants require a mandatory paper application?

A
  • Second grant of probate (to executor who previously reserved power)
  • Grants to a PR where chain of representation applies
  • Grants where original will is missing or issues with the will
  • Grants to attorneys
  • Grant under NCPR 20 if life interest arises
102
Q

If a paper application will be made, what forms will be completed and for what?

A
  • PA1A - deceased did not leave a will and NCPR 22 applies = letters of administration issued to administrators
  • PA1P - deceased left valid will (whether or not executors appointed) = letters of administration (with will) issued to administrators or grant of probate issued to executors

PA1P = Perfect they left a will! PA1A = Ahh! No Will!

Where the deceased left a valid will appointing executors but there is a partial intestacy due to careless drafting the PA1P will be used; deceased left valid will

A man died and left a will appointing his civil partner as his executor. The will has subsequently been declared invalid as there was only one witness. The man had not made any other will; grant of letters of administration because the deceased died intestate and therefore** form PA1A should be completed**

103
Q

Regardless of type of grant or whether application made online or by PA1A/P, what must applicants confirm, justify, provide information about and complete?

A
  • Confirm identity ot deceased and applicants
  • Justify type of grant requested and entitlement to act as PR
  • Provide information about value of estate and IHT status
  • Complete legal statement on probate form confirming information correct and they will administer estate properly

NB (again) that IHT 400 to HMRC and application for grant to Probate Registry are different things - this is the second part

104
Q

When confirming the identity of the deceased, what names should be included?

A
  • Full name of D as per death certificate (plus DOB and DOD)
  • Any different names that deceased owned assets under (so PRs can deal with assets held in whatever name)
105
Q

What will the deceased’s last residential address be if they were in a nursing home?

A

The nursing home address - address will be their last usual residential address

106
Q

What other information about the deceased should be confirmed in an application?

A
  • Domicile
  • Marital status
  • Value of foreign property
107
Q

What details about an applicant must be included in an application?

A

Fuill name, address and contact details

108
Q

What must the exectutor submit and provide along with application?

A
  • Submit original testamentary documents (not returned) to confirm as valid; proving the will
  • Information about physical condition of will given and confirmation of all pages submitted
109
Q

What must the executor account for in their application regarding their name and who is applying?

A
  • Any name differences (e.g. “Francis Donnelly in the will called Frank Donnelly.)
  • If anyone named is not applying - evidence needed
110
Q

If an administrator is applying under NCPR 20/22, what must they include in their application?

A
  • Which category of applicant they fall within w/ reference to will (NCPR 20) or their familial relationship to the deceased and confirmation of entitlement (NCPR 22)
  • Clear-off anyone with a better right to apply (explaining why they are not acting)
  • State whether any B is a minor/life interest arises (where 2 administrators are required)
111
Q

What information about the succession estate is provided in the grant application?

NB: IHT 400 (if necessary) has already been sent!

A

The value of the gross and net estate passing under grant (assets within which are subject to the power conferred on PRs)

112
Q

What information about the IHT400/values of taxable estate is included in the application for grant?

A
  • Confirmation that IHT 400 (if completed) was sent to HMRC and IHT due was paid
  • If excepted estate = applicants still need to include gross and net values of taxable estate in probate application
113
Q

How will Probate Registry know that IHT due was paid to HMRC?

A

IHT 421 sent to PReg by HMRC - PReg will not issue grant before receiving this

114
Q

What do applicants confirm in the legal statement and who must it be signed by?

A
  • They will comply with obligations to collect in and duly administer estate and that contents of form are true
  • Signed by each applicant/legal rep acting for them
115
Q

What is settled land and what happens if D had an interest in it?

A
  • Settled land = specific interest in land under trust governed by Settled Land Act (no lone possible to create trust but those remain from Jan 1997 and before)
  • If D has interest = a separate grant is required to deal with legal estate

This is unusual

116
Q

What additional items might also be provided alongside the formal application?

Formal application being application itself online or paper form (with all information as above; identity, type of grant, value of estate and IHT, legal statement)

A
  • Probate Registry fees and death certificate
  • Testamentary documents
  • Forms of renunciation
  • IHT forms
  • Power of attorney
  • Affidavits
117
Q

When will there be no probate registry fee?

A

Where estate is under £5,000

Amount depends on whether or not professional applying and estate value

118
Q

What is the original grant provided by the Probate Registry called?

A

There is no ‘original grant’ but instead a number of ‘sealed copies’

119
Q

What are the sealed copies used for and how many are required?

A
  • Used when contacting asset holders
  • Amount required depends on estate assets (e.g. one per asset holder and a couple of spare copies)
120
Q

When will a certified copy (not photocopy) of death certificate need to be provided?

A

On personal applications (not legal professional application)

121
Q

What will must be submitted with application and what will the Probate Reg do by to this by issuing grant?

A
  • Original will must be submitted
  • By issuing grant PR will prove the will/codicil (validity of testamentary document confirmed by PR)

Same applies to codicils

122
Q

Once a form of renunciation is included in the application, what happens after?

A

Administration completed as if they had not been appointed

123
Q

Will the PRs sent a completed IHT 400 to the Probate Reg if the estate paid IHT?

A

No - they will be sent to HMRC (who provide confirmation to ProbReg so they can issue grant)

For excepted estates - no IHT payable and PRs not required to submit IHT form as part of grant

124
Q

Where executor appoints attorney to make application on their behalf, what must be included?

A
  • Attorney’s details
  • Express declaration of why named executor is not applying
  • Form PA11 - power of attorney - completed and submitted by donor

PA11 - like 911 = police = PA11 = lawyer (also law job)

125
Q

What is an affidavit?

A

A formal written statement of fact which a person signs under oath - person making affidavit (deponent) ‘swears/affirms’ (formal promise) that contents of document are true

126
Q

What are the 3 legal requirements for making an affidavit?

A

Authenticating statement (jurat) is…

  1. Signed by all parties and dated
  2. Completed and signed by person witnessing and their name (independent solicitor/commissioer for oaths), address and qualification is stated
  3. Must immediately follow from text and not be on separate page

If requirements for making affidavit are met = facts contained within it can be admitted as evidence in support of legal proceedings

127
Q

When will an affidavit be required? How will it be used?

A
  • Where there is a valid will but something about it renders its validity/interpretation uncertain
  • Will be submitted with original will to provide confirmation to PR of circumstances surrounding drafting and execution of will
128
Q

What 4 issues might an affidavit be required for?

A
  • Compliance with s9
  • Knowledge and approval
  • Date
  • Physical condition of will
129
Q

What will be the issue with compliance with s9 and what affidavit is required?

A
  • Issue = will valid but not clear that execution with s9 (e.g. sinatures oddly placed, no attestation clause)
  • Affidavit = of due execution; usually made by one of the witnesses to confirm the will was executed in accordance with formalities

If accepted = application for grant can proceed

130
Q

What will the issue be with knowledge and approval and how is an affidavit used here?

A
  • Issue = reason to doubt presumption of knowledge and approval
  • Affidavit = usually made by one of the witnesses to confirm circumstances in which will was executed
131
Q

When will an affidavit not be required for doubts of knowledge and approval?

A

If attestation clause is drafted to reflect special circumstances under which will was signed e.g. read aloud to T

132
Q

What will the issue be with date and how is an affidavit used here?

A
  • Issue = date on which will signed must be clear to be certain will submitted is last one testator made
  • Affidavit = of due execution; made by one of witnesses to confirm correct date can be submitted with original will
133
Q

What will the issue be with physical condition of the will and how is an affidavit used here?

A
  • Issue = problems with interpretation and whether contents can be given effect to (e.g. when alterations made uncertain; only valid if made before)
  • Affidavit = submitted by one of the witnesses to establish timing of alteration
134
Q

When will an affidavit of plight and condition or attempted revocation potentially be required? What do they confirm?

A
  • Where there are physical signs suggesting alterations e.g. pin holes, paperclip indentations, non-consecutive page numbering, burn marks etc.
  • Will confirm condition of will when executed and condition found following death
135
Q

When will an affidavit of search be required? What does it confirm?

A
  • Where evidence suggests another document was meant to be attached
  • PR confirms enquiries made/searches carried out to find
136
Q

If the original will is missing, what is the potential solution?

I.e. will/codicil existed but original document cannot be located

A

A court order can approve for a copy of will/codicil to be admitted to probate

137
Q

When applying for court order to submit a copy of will/codicil, what should an affidavit include?

A
  • Evidence that will/codicil existed after D’s death (/facts that rebut presumption missing will was revoked during T’s lifetime)
  • Confirmation that will/codicil was correctly executed; and
  • Copy document submitted accurately records testamentary wishes of deceased
138
Q

When is the only time affidavits are an option?

A

Where suitable deponent (person making affidavit) is located and willing/able to provide evidence required

If will/codicil properly drafted and taken care of - unlikely to be need for affidavit evidence

Wills & Administration of Estates (V) (13 decks)

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