Chapter 6) Administration Pre grant Flashcards
1
Q
What is the legal process for managing the distribution of a deceased’s estate called?
A
Administration
Administration involves paying debts, taxes, and making payments to beneficiaries.
2
Q
Who are the people permitted by law to administer a deceased’s estate?
A
Personal representatives (PRs)
PRs can be executors or administrators.
3
Q
What is a PR appointed by a person’s will called?
A
Executor
4
Q
What is a PR appointed by operation of statute called?
A
Administrator
5
Q
What is the female form of an executor?
A
Executrix
6
Q
What is the female form of an administrator?
A
Administratrix
7
Q
What is the court order confirming the authority of the PRs to act called?
A
Grant of representation (the ‘grant’)
8
Q
What does the grant of representation establish?
A
- Authority of the PRs to act
- Validity of the deceased’s will or intestacy
9
Q
Can PRs collect or realize assets without the grant of representation?
A
No, they usually cannot without producing the appropriate grant.
10
Q
What is the power conferred by the grant limited to?
A
Assets passing under the will or intestacy (the succession estate)
11
Q
When may executors act without a grant?
A
From death, but it is not practical as most asset holders require sight of the grant.
12
Q
What are the four main subject areas of the Administration topic?
A
- The role of a PR
- Grants of representation
- Applying for a grant
- Post-grant practice
13
Q
What is the role of a personal representative (PR)?
A
To administer the estate of a deceased, collect assets, pay debts, and distribute assets.
14
Q
What is the fiduciary nature of the PR’s role?
A
All duties must be performed in accordance with their duty of care.
15
Q
What must a person be to act as a PR?
A
Appointed either by the deceased’s will or by operation of statutory rules.
16
Q
What is the difference between an executor and an administrator?
A
An executor derives authority from the will; an administrator derives authority from the grant.
17
Q
What happens if there is no executor willing or able to act?
A
A PR will be appointed under the Non-Contentious Probate Rules (NCPR).
18
Q
What is the legal title to the estate?
A
It lies with the PRs by virtue of their appointment.
19
Q
Is a PR also automatically a trustee of the estate?
A
No, but the roles are similar and both are fiduciary in nature.
20
Q
Under what conditions is a PR considered a trustee of some or all estate property?
A
- The will expressly appoints executors as trustees
- There is an intestacy
- A statutory trust arises under an intestacy
21
Q
What are the three broad ways in which a solicitor may become involved in estate administration?
A
- Instructed by PRs for advice
- Appointed as executor
- Acting on behalf of a party in contentious probate
22
Q
What is required for a grant of representation?
A
A court order confirming the authority of those named to administer the estate.
23
Q
What are the three main kinds of grant of representation?
A
- Grant of probate
- Grant of letters of administration (with will)
- Grant of letters of administration
24
Q
What does the grant of probate require?
A
- The deceased left a valid will
- The will appoints executors
- At least one executor is willing to act
25
What is the purpose of a grant of letters of administration (with will)?
For estates where the deceased left a valid will but no executors are willing/able to act.
26
What is a grant of letters of administration used for?
For estates where the deceased died intestate.
27
What is the purpose of a grant of representation?
To confirm the authority of the PRs to administer a deceased person’s succession estate assets.
28
What is a grant of Letters of Administration?
The appropriate grant where the deceased died without having made a valid will (died intestate).
29
Under which rule are administrators appointed for a grant of Letters of Administration?
NCPR 22.
30
What is the difference between a grant of probate and a grant of Letters of Administration?
A grant of probate is for a valid will with executors, while a grant of Letters of Administration is for intestacy.
31
What is required for the PRs to deal with assets that fall outside of the succession estate?
No grant is required.
32
List three types of assets that can be distributed under the Administration of Estates (Small Payments) Act 1965.
* National Savings (including bank accounts, savings certificates, and premium bonds)
* Arrears of salary and wages
* Pensions where the deceased was a member of specific services.
33
What is the upper financial limit for assets that can be released without a grant under the Small Payments Act?
£5,000 per asset.
34
True or False: A grant is required to administer personal household possessions.
False.
35
What must PRs check before selling any items from the deceased's estate?
Whether any particular items were gifted specifically by the deceased's will.
36
What document is usually required to release property owned as joint tenants upon the death of one owner?
The death certificate.
37
What are Donationes mortis causa (DMC)?
Assets the deceased transferred ownership or control of to the beneficiary during their lifetime.
38
What does it mean for assets to pass outside of the succession estate?
They cannot pass by a will or intestacy and do not require a grant to be released.
39
What are the advantages of having assets that can be administered without a grant?
* Releases money for beneficiaries without waiting for the grant
* Provides funds for expenses
* Cost-effective administration for small estates.
40
Fill in the blank: A grant is usually required to enable PRs to ______ the estate assets.
[administer]
41
What is the significance of the Administration of Estates (Small Payments) Act 1965?
It permits payments to be made without formal proof of title for certain assets.
42
What is the general policy of many banks regarding the release of sums after a death?
They may release sums up to £15,000 (sometimes more) without sight of a grant.
43
True or False: A PR needs a grant to take possession of cash found at the deceased’s home.
False.
44
What types of assets require notification to the trustee upon the death of the beneficiary?
Assets held in a trust in which the deceased had an interest.
45
What must be produced to access funds from life policies written in trust?
The death certificate.
46
What is the role of the PRs in relation to assets that do not devolve on them?
They need to provide required documentation to release those assets.
47
What are the preliminary steps in the administration of an estate?
Practical steps include registering the death, securing estate assets, locating the will, and compiling a schedule of assets and liabilities
## Footnote
Important for understanding the initial responsibilities of personal representatives (PRs)
48
Who is responsible for distributing the deceased's assets?
Personal representatives (PRs) are responsible for asset distribution
## Footnote
PRs are appointed under the will or by intestacy rules
49
What must be done before a funeral can take place?
The death must be registered
## Footnote
Registration is typically done by family members
50
What is the role of a solicitor in the administration of an estate?
Solicitors advise on technical, legal rules relating to the administration
## Footnote
They may not be involved in early practical steps
51
True or False: The PRs need official copies of the death certificate to notify institutions.
True
## Footnote
Institutions include banks and insurance companies
52
What is a PR's duty regarding the estate assets?
To preserve the value of the estate and account for any loss or damage
## Footnote
PRs may be personally liable for estate asset losses
53
What should PRs do if they cannot locate the original will?
They should confirm whether the deceased died intestate or if the will was revoked or lost
## Footnote
Steps must be taken to reconstruct a lost will
54
What is the importance of compiling a schedule of assets and liabilities?
It helps identify and value the estate assets, creditors, and calculate inheritance tax (IHT)
## Footnote
Required for obtaining the grant and managing distributions
55
Fill in the blank: The cost of a funeral is a _______ expense payable from the estate funds.
post-death administration
## Footnote
Relevant under s.34(3) Administration of Estates Act 1925
56
What happens to debts owed by the deceased after their death?
They continue against the estate and must be repaid by the PRs
## Footnote
PRs stand in the position of the deceased regarding debts
57
What is the significance of lifetime transfers made by the deceased?
They can impact the inheritance tax due following death
## Footnote
PRs should inquire about the nature and value of these transfers
58
What is the grant of probate?
The legal document needed for an executor to administer an estate when a valid will exists
## Footnote
It confirms the executor's authority to act
59
Who can act as a PR if the named executor pre-deceased the testator?
A substitute executor can be appointed if specified in the will
## Footnote
If not, the estate may require an administrator
60
True or False: A minor can act as a personal representative.
False
## Footnote
A minor's appointment is valid but they cannot act until they reach 18
61
What is the maximum number of executors that can be named on the grant?
Four executors
## Footnote
More can be appointed in the will, but only four are listed on the grant
62
What should PRs do if they locate new assets after starting the administration?
They should update the schedule of assets and inform relevant institutions
## Footnote
New information may arise during the administration process
63
What happens if an executor is unable to act due to lack of capacity?
They cannot act as a PR, but their appointment remains valid
## Footnote
A substitute executor may be needed
64
What happens if a grant has been taken out and one of the PRs appointed dies before the administration is complete?
If at least one PR remains, the remaining PRs may continue with the administration. If no PR remains, either the chain of representation applies or a grant of letters of administration de bonis non is issued.
65
What is the chain of representation?
The chain of representation applies if the last surviving executor dies having appointed an executor of their own estate, allowing that executor to become executor of the original testator’s estate.
66
What are the three requirements for a grant of letters of administration de bonis non?
* The administration is incomplete
* There are no remaining personal representatives
* There has been a previous grant of representation
67
Who can administer an estate if the sole executor has died and appointed another executor?
The newly appointed executor can take out the grant of probate for the deceased executor's estate and complete the administration of the original testator's estate.
68
What is the maximum number of executors that can be named on the grant of probate?
A maximum of four executors can be named on the grant of probate.
69
What is the role of an administrator?
An administrator is a PR appointed under the Non-Contentious Probate Rules 1987 and their authority to act derives from the grant.
70
What is the grant of letters of administration (with will)?
This grant is needed where the deceased left a valid will but there are no executors willing or able to act.
71
What is the order of entitlement to apply for a grant of letters of administration (with will) according to NCPR 20?
* Executor
* Trustee of the residuary estate
* Any residuary beneficiary
* The PRs of anyone in the previous category
* Any other beneficiary or a creditor
* PRs of anyone in the previous category
72
What is the statutory order of entitlement to apply to be appointed as administrator under a grant of letters of administration?
* Surviving spouse or civil partner
* Children of the deceased
* Father and mother of the deceased
* Whole blood siblings
* Half-blood siblings
* Grandparents
* Uncles/aunts of whole blood
* Uncles/aunts of half blood
73
What must an applicant demonstrate when applying for a grant?
Applicants must demonstrate their familial relationship with the deceased and have a beneficial entitlement under the estate.
74
What happens if there is no one who can apply from categories (a) to (h) under NCPR 22?
* The Crown may apply claiming bona vacantia
* A creditor or person who does not receive benefit may apply
75
Can a minor act as an administrator?
No, a minor cannot act as administrator but someone can apply for a grant on their behalf.
76
What is required if two administrators are needed but only one is able/willing to apply?
That person may apply for the grant with somebody from the next category of entitlement.
77
What constitutes an executor being unable to act?
* Pre-deceased the testator
* Survived but died before taking out the grant
* Minor
* Lacks capacity
* Former spouse/civil partner after divorce
78
What must an executor explain if they are unable to act?
The remaining executor(s) must explain to the probate registry why all appointed by the will are not applying.
79
What is the effect of a spouse pre-deceasing the testator on the entitlement to apply for a grant?
The spouse's pre-decease means that the will does not appoint an executor who can act.
80
What is the minimum number of administrators required?
One administrator is required, unless there are minor or life interests, in which case two are required.
81
What is the status of a minor appointed as an executor?
Probate can be issued to other executors with power reserved to the minor, who can apply upon reaching 18
## Footnote
Rule 33 NCPR states that power may also be reserved to an executor who lacks capacity.
82
What options does an unwilling executor have?
* Renunciation
* Reserving power
* Appointing an attorney
83
What is renunciation in the context of an executor?
An executor formally gives up their right to apply for probate, and administration continues as if they were not appointed
## Footnote
The executor must submit a signed form of renunciation to the probate registry.
84
What is intermeddling?
Taking steps indicating acceptance of appointment and fulfilling the duty to administer the estate
## Footnote
Examples include obtaining or holding the deceased's assets, paying debts, or selling assets.
85
Can an executor renounce if they have intermeddled with the estate?
No, an executor cannot renounce if they have intermeddled.
86
What is required for an executor to reserve power?
There must be at least one other executor who applies for the grant of probate.
87
What does reserving power allow an executor to do?
It allows them to apply for the same grant of probate later.
88
What happens if all executors are unwilling to act?
A grant of letters of administration (with will) would be appropriate.
89
What are the options for an administrator who does not wish to act?
* Renunciation
* Appointing an attorney
90
Can an administrator reserve power?
No, unlike an executor, an administrator cannot reserve power.
91
What must an administrator do if they decide not to apply for a grant?
They should formally renounce their right to apply.
92
What is the deadline for submitting the IHT account?
12 months from the end of the month in which the death occurred.
93
What is the deadline for paying IHT due?
6 months from the end of the month in which death occurred.
94
What is the nil rate band (NRB) for IHT?
Value up to £325,000, though this figure may vary.
95
What tax rate applies to values above the nil rate band?
40% on any value above the NRB.
96
What is the transferrable nil rate band (TNRB)?
The unused part of a deceased spouse's NRB that can be claimed by the surviving spouse.
97
What types of assets may qualify for the instalment option for IHT payment?
* Land and buildings
* Company shares/securities giving control
* Some unquoted company shares/securities
* Farms or interest in a farming business
* Business or interest in a business
* Timber
98
What happens if property under the instalment option is sold?
The instalment option ceases and the outstanding IHT is due immediately.
99
What is the purpose of the instalment option?
To prevent undue hardship on the taxpayer.
100
What is the minimum shareholding value to qualify for certain tax reliefs?
£20,000 and at least 10% of the nominal value of all the company shares.
101
What types of interests can be included in a farming business for tax purposes?
Farms or interest in a farming business.
102
What is the instalment option in relation to IHT?
An option to prevent undue hardship on the taxpayer, ceasing if the property is sold.
103
What form is used to report estate assets and liabilities to HMRC?
Form IHT 400 (IHT account).
104
When are PRs not required to complete an IHT 400?
If the estate is excepted.
105
What are the two categories of excepted estates for those domiciled in the UK?
* Low value excepted estate
* Exempt excepted estate
106
What defines a low value excepted estate?
Gross value of the estate is below the NRB with no IHT payable.
107
What is included in the gross value for assessing low value excepted estates?
* Total taxable estate figure
* Value of specified transfers
* Value of specified exempt transfers
108
What is the current NRB amount?
The current NRB amount and any transferable NRB available from their spouse.
109
What is an exempt excepted estate?
An estate where gross value is no more than £3 million and no IHT is payable after deductions.
110
What must be considered for an estate to qualify as exempt excepted?
Only spouse or charity exemption can be considered.
111
What is the consequence if the deceased made a gift with reservation of benefit?
The estate cannot be excepted.
112
What must PRs do if they discover inaccuracies in the IHT400 after submission?
They must submit a corrective account Form C4.
113
What are the options available for raising funds to pay IHT?
* Direct Payment Scheme
* Borrowing
114
What does the Direct Payment Scheme allow?
Banks may make a direct payment from the deceased’s account(s) to HMRC.
115
What is the deadline for submitting the IHT 400?
12 months from the end of the month of death.
116
What does a grant of representation confirm?
The authority of those named to administer the estate.
117
What type of grant is issued when the deceased left a valid will with appointed executors?
Grant of probate.
118
What is required for the Probate Registry to issue a grant?
Applicants must demonstrate entitlement and provide sufficient information about the estate.
119
What is a professional application in the context of probate?
An application made by a solicitor or probate practitioner.
120
What are the three categories of professional applications?
* Mandatory online application
* Online application possible but not mandatory
* Mandatory paper application
121
What are the three categories of applications by professionals?
* Mandatory online application
* Online application possible but not mandatory
* Mandatory paper application
122
What form should be completed if the deceased did not leave a will?
PA1A
123
What form should be completed if the deceased left a valid will?
PA1P
124
What must be confirmed in all applications for a grant?
* Identity of the deceased and applicants
* Justification of the type of grant requested
* Information about the value of the estate
* Legal statement confirming the information is correct
125
What is required to confirm the identity of the deceased?
Full name, date of birth, date of death, and last usual residential address
126
What is a grant of probate?
Required where executor(s) appointed by will are applying
127
What is a grant of letters of administration?
* With will - required where no executors appointed by will apply
* Without will - required where deceased died intestate
128
What must executors provide to prove their entitlement to grant?
Original testamentary documents
129
What must applicants under NCPR 20 state?
* Category of applicant
* Clear-off anyone with a better right to apply
* Status of beneficiaries (minor or life interest)
130
What must be included in the IHT status confirmation?
Confirmation that IHT 400 has been sent to HMRC and IHT due was paid
131
What is settled land?
Specific interest in land under a trust governed by the Settled Land Act 1925
132
What must applicants sign in the legal statement?
Statement confirming they will administer the estate properly
133
What is required when applying for a grant regarding fees?
Probate registry fee based on estate value
134
What must be submitted if the deceased left a valid will?
Original will and any codicils
135
What happens if an executor renounces their right to apply?
The administration is completed as if they had not been appointed
136
What is an affidavit?
A formal written statement of fact signed under oath
137
What must an affidavit include to be valid?
* Signed and dated
* Completed by an independent solicitor or commissioner for oaths
* Jurat must follow the text
138
When might affidavit evidence be required?
If the validity or interpretation of a will is uncertain
139
What are the requirements of s.9 Wills Act 1837?
Affidavit of due execution where execution requirements are unclear
140
What is the purpose of a legal statement on the probate form?
To confirm the information provided is correct and that the estate will be administered properly
141
What documentation is needed for all applications?
* PA1A or PA1P or online application
* Application fee + £ per sealed grant
142
What is the maximum number of applicants that can be named on the grant?
Four applicants
143
What should be included in the application if the deceased had an interest in settled land?
A statement confirming the interest and a separate grant is required
144
What is an affidavit of due execution?
An affidavit made by one of the witnesses confirming that the will was executed in accordance with the formalities required
## Footnote
It often includes confirmation that the will was read out loud to the testator and that the testator understood its contents.
145
What does a standard attestation clause raise a presumption of?
Knowledge and approval of the will's contents by the testator
## Footnote
This presumption can be challenged if there are doubts about the testator's capacity to understand the will.
146
Under what circumstances might an affidavit of due execution be required?
If there is reason to doubt the knowledge and approval of the testator, such as blindness or extreme frailty
## Footnote
This affidavit confirms the conditions under which the will was executed.
147
What must the Probate Registry confirm about the date of the will?
That the will was signed on a clear and definitive date
## Footnote
Doubts may arise if the date is missing, incomplete, or if multiple dates are present.
148
What problems can arise from the physical condition of a will?
It can affect the interpretation of the will and whether its contents can be enforced
## Footnote
Alterations made to the text may lead to questions about their validity.
149
What must be established if alterations are made to a will?
Whether the alterations were made before or after the execution of the will
## Footnote
An affidavit as to alterations may be submitted to confirm the timing.
150
List some signs that suggest a will may be incomplete or tampered with.
* Pin holes
* Paperclip indentations
* Non-consecutive page/clause numbering
* Signs of attempted revocation (burning or tearing)
## Footnote
These signs may necessitate an affidavit of plight and condition.
151
What is required if the original will or codicil cannot be located?
An affidavit must be submitted to address the missing document before making the grant application
## Footnote
NCPR 54 allows a copy to be admitted to probate with a court order.
152
What evidence should be included in an affidavit when applying for a court order for a missing will?
* Evidence that the will/codicil existed after the deceased's death
* Confirmation of proper execution
* Assurance that the copy accurately reflects the testamentary wishes
## Footnote
These elements are crucial for the court's approval.
153
What practical considerations should be taken into account regarding affidavits?
A suitable deponent must be located who is willing to provide the necessary evidence
## Footnote
Properly drafted wills usually do not require affidavit evidence.
154
What issues commonly arise with homemade wills?
Issues often arise from improper execution or lack of supervision by a solicitor
## Footnote
Clients should be instructed on proper execution and care of the will.
155
What is an affidavit of search?
An affidavit confirming the steps taken to locate missing documents
## Footnote
It is signed by the personal representative.
156
What alternative to affidavit evidence can be submitted in non-contentious probate matters since November 2020?
A witness statement supported by a Statement of Truth
## Footnote
This provides a modern alternative for evidential requirements.
157
What can an affidavit as to alterations confirm?
The timing of alterations made to a will
## Footnote
This is important for determining the validity of the changes.
158
What is the role of the personal representative in the context of a missing will?
To confirm what inquiries were made and searches carried out to locate the missing document
## Footnote
They provide crucial evidence for the court.
159
True or False: An affidavit of plight and condition is used to confirm the physical condition of the will at execution and after death.
True
## Footnote
This affidavit helps clarify any doubts regarding the will's integrity.
160
Fill in the blank: An affidavit of _______ can be used to confirm compliance with the Wills Act 1837.
[due execution]
## Footnote
This affidavit includes confirmation of knowledge, approval, and date of signing.
