Administration: Obtaining the grant of representation Flashcards
What is a grant of representation?
An official document confirming the PRs authority to act.
PRs have to gain control of the deceased assests so that they can realise or sell them, if necessary, in order to pay the deceased’s debts and pecuniary legacies.
Before asset holders such as banks, building societies and insurance companies, will release fund to the PRs, they usually require proof that the PRs have been properly appointed. The document which confirms the PRs authority and their title to the deceased’s assets is the grant of representation.
Who are the personal representatives
Either the deceased’s executors or intended administrators. Personal representatives is a generic term which covers both.
What is the first step when obtaining a grant of representation?
Identify the personal representatives the following shows how to identify PRs in common scenarios
- If the deceased left a valid will that names executors, and at least one of them is willing and able to serve, the executors will apply for a grant of probate using form PA1P.
- If the deceased left a valid will but no one is able or willing to act as executor, the administrators will apply for a grant of letters of administration with the will attached (annexed) using form PA1P. Rule 20 specifies who the administrators will be
- If the deceased left no will or a non-valid will, the administrators will apply for a grant of simple letters of administration using form PA1A. Rule 22 specifies who the administrators will be.
What is a key difference between executors and administrators regarding the number of individuals required in cases involving infants or life interests?
Two administrators are usually required when one of the beneficiaries is an infant (minority interest) or has a life interest, whether it’s for simple letters of administration or letters of administration with the will. In contrast, one executor can always act alone in these cases.
What is the difference between a personal representative (PR) and trustees when selling land regarding receipts for sale proceeds?
One PR can obtain a grant and act alone, giving a valid receipt for the sale proceeds, even if the estate includes land. In contrast, when trustees sell land, the purchaser requires a receipt from all trustees, with at least two trustees or a trust corporation.
How do the authority and powers of executors and administrators differ in estate administration?
Executors derive authority from the will and have the power to act from the time of death, but need the grant of probate to complete certain transactions (e.g., sale of land) and access funds. In contrast, administrators (with or without a will) have very limited powers before the grant of letters of administration. Their authority stems from the grant, which is not retrospective to the date of death, and vests the deceased’s property in the administrators. Both the grant of probate and letters of administration provide conclusive evidence of title to the deceased’s assets and the validity of any will.
Once the Pr’s have been identified What must be checked to ensure a will is valid and admissible to probate?
To ensure a will is valid and can go to probate, check:
-It is the last will of the deceased.
-it hasn’t been revoked.
-It was signed and witnessed properly according to the Wills Act 1837. This means:
(a) The will must be in writing.
(b) It must be signed by the testator (the person making the will).
(c) The testator’s signature must be made or acknowledged in the presence of at least two witnesses.
(d) The two witnesses must sign the will in the testator’s presence.
(e) The will includes an attestation clause confirming it was signed and witnessed correctly.
If these conditions aren’t met, the will may be invalid, leading to intestacy and requiring a grant of simple letters of administration.
What steps are taken after the personal representatives are identified and the will is confirmed valid?
Once the personal representatives are identified and the will is confirmed valid, the solicitor will:
Ask the personal representatives for details of the deceased’s assets.
Obtain related documents, such as building society passbooks and share certificates.
These details help assess the size of the deceased’s estate and any potential Inheritance Tax (IHT) liability.
Which assets can be accessed without a grant and what are the conditions?
You can access some assets without a grant, which helps cover immediate costs like Inheritance Tax or bills.
Under the Administration of Estates (Small Payments) Act 1965:
- Payments can be made without a grant if the total value is under £5,000.
- This applies to assets like money in the National Savings Bank, Trustee Savings Bank, national savings certificates, premium bonds, and building societies.
Chattels: movable personal property such as furniture, clothing, jewelry, and cars—can usually be sold without the personal representative needing to formally prove their entitlement to sell these items.
Cash: personal representatives typically do not require a grant when taking custody of any cash found in the deceased’s possession.
However, for financial assets, the institutions decide whether to make payments, and if they refuse, you’ll need a grant to access those assets.
What assets do not pass through the Personal Representatives (PRs) due to the irrelevance of the grant of probate?
- Joint Property: Assets held as beneficial joint tenants do not pass through the PR’s hands. On death, any interest in property (whether land or personal property, such as a bank account) held by the deceased automatically passes by survivorship to the surviving joint tenant.
Irrelevance of Grant: Since these assets do not vest in the PRs, the grant of probate is irrelevant for joint property.
Transfer Process: The surviving joint tenant can transfer the property into their sole name simply by presenting the deceased’s death certificate to the relevant institution, such as the deceased’s bank or the land registry
- Insurance Policies: If the deceased assigned their life insurance proceeds or wrote them in trust for others, the beneficiary can obtain the proceeds simply by presenting the deceased’s death certificate to the insurance company. A grant is not required, as the money does not pass under the deceased’s will or intestacy.
- Pension Benefits: Death in service benefits under a pension scheme are often payable to individuals selected at the discretion of the pension fund trustees. Payments are made to the beneficiaries upon production of the death certificate. A grant is not required since the pension benefits do not pass under the deceased employee’s will or intestacy.
For joint property, insurance policies, and pension benefits, assets can be accessed without probate.
What is the process of calculating and paying Inheritance Tax (IHT) during estate administration?
First, gather the details of all the deceased’s assets and assign a value to them to calculate any IHT payable on the estate. It must then be determined if an IHT account should be submitted to HMRC or if the estate is excepted. If IHT is payable, it may be due before the grant is obtained.
The Personal Representatives (PRs) must submit form IHT400 (or IHT401 if the deceased was domiciled outside the UK) to HMRC and pay the IHT. HMRC will issue a receipt (IHT421), which is required by HMCTS before issuing the grant. A 20-working-day period should be allowed between the submission of IHT400 and the grant application. Funding IHT may be a challenge, as most of the deceased’s assets cannot be accessed before obtaining the grant.
What are the two main steps in applying for a grant of probate or letters of administration, and what specific additional documents and evidence may be required?
Step 1: Application and Fee
Grant of Probate: Legal professionals must apply online, except in limited cases (e.g., when proving a copy of a will).
Letters of Administration: Applications can be made by post or online, provided certain conditions are met (e.g., a single applicant who is the sole person entitled to the estate).
Postal Applications: Use form PA1P if there is a will (for probate or letters of administration with the will annexed).
- Use form PA1A if there is no will.
- The fee remains the same whether the application is submitted online or by post.
Step 2: Additional Documents Required:
The original will of the deceased and any codicil must be sent to HMCTS.
Evidence of Validity: In some cases, before issuing the grant, the probate registrar may require additional evidence to confirm the will’s validity. Evidence may include an affidavit sworn before a solicitor (not acting for the estate) or a witness statement verified by a statement of truth.
What action is required if a will lacks an attestation clause or has a defective one?
If there is no attestation clause, or if the clause is defective, the registrar will require evidence to establish that the will was properly executed. This is typically provided by an attesting witness, who must confirm that the formalities required by law were followed, ensuring that the will is valid.
What type of evidence may be required if there is doubt about the testator’s mental capacity at the time of making the will?
If there is doubt regarding the testator’s mental capacity, an affidavit from a doctor who examined the testator at the time the will was made may be necessary. The doctor’s affidavit should address whether the testator had sufficient mental capacity to understand the nature and effect of the will when it was executed.
Under what circumstances might the registrar question whether the testator was aware of the contents of the will?
The registrar may question whether the testator was aware of the contents of the will when it was executed in cases where:
The will was signed by someone other than the testator due to illiteracy or frailty.
There are suspicious circumstances, such as where the person who prepared the will stands to benefit significantly from it.
This could suggest undue influence or lack of awareness on the part of the testator.
How can the attestation clause be adapted to confirm the testator’s knowledge and approval of the will’s contents?
To confirm the testator’s knowledge and approval, the attestation clause should be adapted to state that the will was read to the testator or independently explained to them. This adaptation ensures that even if the testator did not personally sign the will, they fully understood and approved its contents before it was executed.
If the attestation clause is not adapted, what evidence must be provided to confirm that the testator had knowledge and approval of the contents of the will?
in the absence of an appropriately adapted attestation clause, the registrar will require evidence in the form of an affidavit or witness statement. This should be provided by someone who can speak to the facts—typically an attesting witness, or an independent person who explained the provisions of the will to the testator. This evidence must confirm that the testator understood and approved the will’s contents.
What specific challenges arise with remote witnessing of a will, and what evidence might be required?
When witnesses observe the testator signing or acknowledging the will via video link (remote witnessing), questions about the formalities of execution, the testator’s mental capacity, and their knowledge and approval of the will’s contents are more likely to arise. If the attestation clause does not provide sufficient details about these matters, the registrar will likely require additional evidence, typically in the form of an affidavit or witness statement from those who were present during the remote execution (either physically or remotely).
What kind of evidence is required if the will has marks or alterations that suggest interference or post-execution tampering?
If the will appears to have been altered or tampered with after execution, the registrar will require further evidence explaining the will’s condition.
This evidence is usually provided through an affidavit or witness statement of “plight and condition” from someone knowledgeable about the facts. Examples include:
If the will has been altered post-execution.
If marks (e.g., paper clip impressions) suggest that another document was attached to the will.
If the will appears to have been partially destroyed (e.g., torn), which could suggest attempted revocation.
What is presumed if a will that was last known to be in the testator’s possession cannot be found after their death?
if a will known to have been in the testator’s possession cannot be located after their death, it is presumed that the testator intentionally destroyed the will with the intention of revoking it. This presumption stands unless there is evidence to the contrary, such as proof that the will was lost or destroyed accidentally.
What steps can be taken if a will has been lost or accidentally destroyed, and probate is still required?
If a will has been lost or accidentally destroyed, probate can still be obtained if a copy of the will exists (for example, in a solicitor’s file) or if the will can be reconstructed. In such cases, the applicant for probate must provide appropriate supporting evidence, typically in the form of an affidavit or witness statement, to explain the circumstances and confirm that the testator intended for the will to remain valid.
What does the registrar require when the state of a will suggests it has been altered or tampered with after execution?
If the will shows signs of alteration or tampering after its execution, the registrar will require an affidavit or witness statement explaining the will’s “plight and condition.” This evidence helps clarify whether the alterations were made by the testator, or if there are other factors (such as attempted revocation or the attachment of additional documents) that need to be considered before probate is granted.
How is a presumption of revocation handled when a will cannot be found after the testator’s death?
When a will that was known to be in the testator’s possession cannot be located after their death, the presumption is that the testator destroyed it with the intention of revoking it. However, this presumption can be rebutted if there is evidence that the will was lost or accidentally destroyed, in which case probate may still be obtained on a copy or reconstruction of the original will.
