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Wills and the Administration of Estates > Chapter 7: Grants of Representation > Flashcards

Chapter 7: Grants of Representation Flashcards

1
Q

What is a grant of representation?

A

A court document authorising the deceased’s PR to deal with the deceased’s estate and to transfer assets to the beneficiaries.

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2
Q

Where is most probate business conducted if it is non-contentious?

A

Conduct by His Majesty’s Court and Tribunals Service (HMCTS).

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3
Q

When is probate business contentious?

A

If there is a dispute about whether a document is admissible to probate or about who is entitled to a grant of representation

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4
Q

Who deals with contentious probate business?

A

The Chancery Division of the High Court, or the County Court if the estate is below £30,000, becomes involved.

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5
Q

What is non-contentious business regulated by?

A

The Non-Contentious Probate Rules (NCPR)

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6
Q

When is it potentially possible for PRs to obtain payments by just producing a death certificate?

A

For amounts up to £5,000 held in:
1. National Savings accounts,
2. National Savings Certificates,
3. Premium Savings Bonds, or
4. building societies,
5. service and emergency service members’ pensions,
6. civil servants salaries and pensions

This is at the discretion of the institution concerned - PRs cannot insist.

Payment can be made to the person appearing to be entitled to the grant OR to be beneficially entitled to the relevant asset.

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7
Q

What can be sold without the PRs having to prove they are entitled to sell such items?

A

Chattles such as furniture, jewellery, clothing, and cars.

All that is required for these assets is production of the death certificate.

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8
Q

Who can the application for a grant of representation be made by?

A

The personal representatives personally, or
Via a probate practitioner.

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9
Q

If PRs instruct solicitors, who is the client?

A

The personal representatives are the solicitors’ clients.

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10
Q

What are the types of grant of representation?

A
  1. Grant of probate
  2. Letters of Administration with Will Annexed
  3. Letters of Administration
  4. Grants de Bonis Non
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11
Q

What is a grant of representation?

A

A legal document that confirms a person’s ability to administer the estate of the deceased.

Conclusive evidence as to the terms and due execution of any will, or that the deceased died intestate.

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12
Q

When is a grant of probate obtained?

A

When the deceased leaves a valid will.

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13
Q

Who can a grant of probate be made to?

A

Only to executors, who are usually expressly appointed by the will.

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14
Q

If a firm of solicitors is appointed as executors, who is entitled to act under a grant of probate?

A

The partners at the date of the will (subject to contrary intention in the will).

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15
Q

How many people can a grant of probate be issued to?

A

1 executor may obtain a grant of probate + act alone (e.g., surviving spouse).

Cannot be issued to more than 4 executors, but different parts of the estate can have different executors.

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16
Q

What notice for a grant of application is given?

A

Notice of the application for a grant of probate is normally given to any executors to whom power is being reserved.

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17
Q

What gives executors the legal authority to deal with the estate?

A

The will

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18
Q

What is the effect of a grant of probate being given?

A

Confirms the authority of the executors.

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19
Q

When does the testator’s property vest in the executors?

A

On death

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20
Q

When will an application for letters of administration with the will annexed usually be made?

A

When there is a problem concerning the appointment of the executors in the will.

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21
Q

What is a grant of probate required for?

A

Grant of probate (or at least an office copy of it) will usually need to be produced as evidence of the executors’ authority to act on behalf of the estate.

Required to:
<> legally sell property owned in the estate’s name,
<> access bank accounts,
<> transfer or sell shares, etc.

22
Q

What are some reasons why letters of administration with will annexed might be needed?

A
  1. The appointment of the executor in the will wasn’t correctly drafted
  2. The will is valid, but the deceased didn’t appoint an executor, or
  3. The executor died before the deceased, renounced, or is unable (e.g., a minor/mentally incapable) or unwilling to act.
23
Q

What sets out the order of entitlement to a grant of letters of administration with will annexed?

A

NCPR (rule 20)

24
Q

What is the order of entitlement to a grant of letters of administration with will annexed?

A
  1. Category not relevant
  2. Trustee of the residuary estate
  3. Any other residuary beneficiary. Vested interests are preferred to contingent ones.
  4. PRs of anyone in (3), other than a life tenant of the residue,
  5. Any other beneficiary or a creditor, and
  6. PRs of anyone in (5) other than a life tenant.

Essentially, the residuary is treated as the principal interest, regardless of its value.

25
Q

When deciding who has the right to apply for letters of administration with will annexed, what happens if there is more than 1 person of equal rank?

A

If one has a vested interest and one has a contingent interest in the estate, the court generally prefers an application by the vested interest beneficiary.

26
Q

What is needed if there is a minor beneficiary or a life interest under a will?

A

A minimum of 2 administrators will be required.

27
Q

If a gift in a will fails due to a beneficiary or their spouse having witnessed the will, what is this effect on their right to a grant?

A

They lose their right to a grant under the list as a named beneficiary.

However, they can claim in a different capacity, e.g., as a person entitled on partial intestacy.

28
Q

Who can renounce their right to apply for letters of administration with will annexed?

A

Anyone entitled to apply for a grant can renounce.

In contrast to executors, the right to renounce is not lost by intermeddling in the estate.

29
Q

What must a person applying for a grant do if there are others with a better right to the grant of letters of administration with will annexed?

A

They must ‘clear off’ those having a better right to the grant.

30
Q

What is clearing off?

A

Achieved through completing the relevant information in the application for a grant.

31
Q

Who does not need to be cleared off when applying for grant of letters of administration with will annexed?

A

People in the same category as the person applying.

If there is more than 1 person in the same class entitled, then any one person in that class may apply without giving notice to the others in that class.

32
Q

If more than 1 administrator is needed, but there is only 1 person in the top priority category, what can be done?

A

It may be necessary to seek the additional person from a class of lower priority

33
Q

When are letters of administration required?

A

When the deceased dies intestate or when there is a will but all the gifts have failed.

34
Q

What does a grant of letters of administration do?

A

Gives the named personal representatives the legal authority to administer the estate in accordance with the statutory rules of intestacy.

There is no authority from the date of death.

Only on issue of the grant does the deceased’s property vest in the administrator (in the interim it vests in the Public Trustee).

35
Q

What can an administrator do before a grant is made?

A

Administrator (with or without the will annexed) has very limited powers before a grant is made.

36
Q

What is the order of entitlement for a grant of letters of administration?

A

Broadly similar to intestacy.

  1. Surviving spouse (or civil partner)
  2. Children of the deceased + issue of any predeceased child,
  3. Deceased’s parents
  4. Deceased’s siblings of the whole blood (and issue of predeceased)
  5. Deceased’s siblings of the half blood (and issue of predeceased)
  6. Grandparents
  7. Uncles and aunts of the whole blood (and issue of predeceased)
  8. Uncles and aunts of the half blood (and issue of predeceased)
  9. The Crown, and
  10. Creditor of the deceased
37
Q

What is required of any applicants for a grant of letters of administration?

A

They must have a beneficial interest in the estate.

38
Q

Who has the same right to a grant as the person in the order of entitlement of letters of administration?

A

The PRs of a person with a beneficial interest have the same right to a grant as the person whom they represent.

However, issue have priority over the PRs of a surviving spouse who has died before obtaining a grant - unless the spouse was beneficially entitled to the entire estate.

39
Q

When will 2 administrators be required?

A

If there is a minor beneficiary or a life interest under a will.

40
Q

How many people can be issued a grant of letters of administration?

A

Maximum of 4

41
Q

Can someone have their power reserved under a grant of letters of administration?

A

No

42
Q

Who can renounce their right to be an administrator with letters of administration?

A

Anyone entitled to apply for a grant can renounce their right.

43
Q

Who must be cleared off when applying for an application for letters of administration?

A

Those having a better right to a grant must be cleared off by completing the relevant information in the application for a grant, but those in the same category do not need to be.

44
Q

What is a grant of administration de bonis non?

A

A second grant made to allow the completion of the administration of the deceased’s estate following the death of the sole or last surviving PR - or when a previous grant has been revoked.

45
Q

Who will a grant de bonis non be granted to?

A

The person who would have been entitled had the original PR never taken the grant.

46
Q

When is a grant de bonis non not needed?

A

If one of several PRs has died, or
If a ‘chain of representation’ exists.

47
Q

What does a ‘chain of representation’ happen?

A

When a sole or last surviving executor dies and that executor’s executor takes a grant of probate.

The chain is broken if a sole or last surviving executor dies intestate or fails to name an executor in their own will.

48
Q

What does the chain of representation not apply?

A

If an executor named by will predeceases the testator or dies before obtaining a grant of probate.

In such cases, an application for letters of administration with will annexed is made and the order of entitlement follows Rule 20 of the NCPR

49
Q

What happens if a minor is one of several executors or potential administrators?

A

A grant is made to the adult PRs with power being reserved to the minor in the case of a grant of probate.

50
Q

What happens if the minor is the only or last surviving PR?

A

A limited grant of letters of administration is made to the minor’s parent or guardian for the use and benefit of the minor until age 18.

51
Q

What powers does the court have when it comes to grants of representation?

A

The court has discretion to make a grant to someone other than the person who is prima facie entitled under the NCPR - e.g., if a potential PR is bankrupt or in prison.

Court can also remove an existing PR + appoint a substitute

Wills and the Administration of Estates (23 decks)

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