Chapter 7: Getting the grant of representation Flashcards
what is a grant of representation
legal document which allows executors/ administrators to manage/ distribute the estate.
what are the types of grant?
Grant of Probate - issued when there is a valid Will and named executors apply.
Letter of Administration - no will / no valid will (intestacy rules).
Letters of Administration with will annexed - there is a will but no named executor
what must be done before grant is issued?
Pay IHT and application
what does ‘common form’ mean?
no disputes about the will.
which court will deal with a dispute about a will?
Chancery Division of High Court
what is needed for an application for grant of probate?
need whole original will (codicils) UNLESS it is not in existence - must have evidence
what is needed for an application for grant of administration?
clearing off’ (explain to registry they are the first appropriate person (Rule 8 (4))
what is a caveat?
raising issue with the registry. Cannot continue until removed/ expire (6 months - can be renewed) R44(1) 44(3)
what is ‘entering an appearance’?
Caveator responds by ‘entering an appearance’ (sets out interest) R 44(10) - contradictory interest.
what is a summons for directions?
require for court to consider if an executor is appropriate to act (Rule 44(6).
what is the time limit on the caveat process?
8 days on each step - (R44(12))
who can apply for an grant of administration with the will annexed?
NCPR Rule 20 allows next appropriate administrator to act in accordance with the will.
what are the 3 categories for a limited grant of representation?
- Tasks of the PR not completed: de bonis non administratis
- Deceased’s property in danger of waste ruin or destruction: ad colligenda bona.
- Ongoing litigation about the estate: grant pendente lite.
who can apply for a temporary grant?
Valid will exists - application made by person who is entitled to grant of administration (will annexed) - Rule 20
No will/ invalid will - person who is next in line as PR can apply: subject to Rule 22.
what is the general rule - Rule 6 (2)
Not issue grant of probate if application over 7 days since death
Not issue grant administration if over 14 days since death
what document shows proof of tax?
stamped IHT 421
what is an excepted estate?
no FULL tax return needed (lesser obligations)
what is the criteria of an excepted estate?
less than IHT threshold (£325,000) OR
Less than £1,000,000 but no tax payable because passing to spouse/ civil partner/ charity OR
Less than £750,000 and claim to transfer all of an unused nil rate band
what are the resolutions to pay tax without a grant of representation?
Direct payment scheme - bank will transfer to HMRC after seeing IHT Form 423.
- Borrowing from a beneficiary.
- Borrowing from a bank / building society - last resort.
which NCPR Rule is for statement of truth?
Rule 8(1)
what is in a statement of truth?
Full name of testator
Names by which they held property
Postcode
Signed by all persons
IF a subset executor must explain why
what does Rule 11 NCPR say?
need whole original will for grant of probate
what happens if a will is missing?
application for an order to admit a copy/ or in extreme cases as draft (alongside statement of truth) (Rule 54(11)
what is needed if there is an issue with a will?
affidavit evidence AND ex parte application.
what happens if there is no attestation clause?
no attestation clause court will want witness statement confirming due execution (NCPR Rule 12(1)).
what happens if the will is not dated?
may need affidavit evidence from a witness / person present at execution (Rule 14 (4) NCPR)
what happens if there are 2 contradictory dates?
If there are 2 dates the registry will usually accept the later date (if it is at the end of the will) but may need evidence.
when might the registry have concerns about knowledge/ approval?
testator was illiterate etc
what happens if a will is in bad condition?
submit affidavit evidence of plight and condition
what is the basic rule on alterations?
all unsigned and and unwitnessed alteration as assumed made after the will has been executed.
when will alterations NOT be ignored?
evidence (from attesting witnesses) showed they were made before Rule 14 (1) and (2).
what happens if a will is damaged?
Need affidavit evidence that of the the condition of the will when the testator executed AND died.
what happens if part of a will is missing?
registry ask for affidavit of searches undertaken and results.
