Executors entitlement to grant

Question 1

What needs to happen if one of the appointed executors does not act?

Answer 1

The remaining executors can continue with their application, but they will need to explain at the probate registry why not all of those named are applying

Question 2

What needs to happen if one of the appointed executors does not act?

Answer 2

The remaining executors can continue with their application, but they will need to explain at the probate registry why not all of those named are applying

Question 3

How many executors named and how many can apply for the grant?

Answer 3

No limit to those who can be named, but maximum 4 can apply for a grant.

Power can be reserved to any remaining executors appointed, which means they would be able to apply at a later date if vacancy arose and the administration remained incomplete. They would apply for a grant of double probate.

Question 4

What is an PR dies after a grant is taken out but before completion of administration but others remain?

Answer 4

• remaining PR can continue/ can be appointed

Question 5

What is an PR dies after a grant is taken out but before completion of administration but others remain?

Answer 5

• remaining PR can continue/ can be appointed

Question 6

What if PR dies and no other PR remains?

Answer 6

• If executor dies, then chain of representation applies: the executor of their estate automatically becomes the executor or the original testators estate, no additional grant is required

Question 7

What if PR dies and no other PR remains?

Answer 7

• If executor dies, then chain of representation applies: the executor of their estate automatically becomes the executor or the original testators estate, no additional grant is required

Question 8

What if PR dies and no other PR remains?

Answer 8

• If executor dies, then chain of representation applies: the executor of their estate automatically becomes the executor or the original testators estate, no additional grant is required

Question 9

What if the chain of representation can’t operate?

Answer 9

If the chain of representation cannot operate a second grant will be issued - a grant of letters of administration de bonis non.

• Three requirements must be satisfied:

1) the administration is incomplete
2) there are no remaining personal representatives; and
3) there has been a previous grant of representation

NEW GRANT REQUIRED IF NO CHAIN

Question 10

What rule is used to appoint administrators under a grant of letters of administration (with will)

Answer 10

Rule 20 20 Non-Contentious Probate Rules 1987

Question 11

What rule is used to appoint administrators under a grant of letters of administration (with will)

Answer 11

Rule 20 20 Non-Contentious Probate Rules 1987

Question 12

What rule is used to appoint administrators under a grant of letters of administration (with will)

Answer 12

Rule 20 Non-Contentious Probate Rules 1987

Question 13

What is the order of priority under rule 20?

Answer 13

a) Executor
b) Trustee of residuary estate
c) Beneficiary under the will will (whether absolutely or for life), or, where there is a partial intestacy, a beneficiary of the estate under intestacy
d) PRs of anyone in (c)
e) any other beneficiary or creditor
f) PR of anyone in (e)

Question 14

What are the rules for part 20 order of priority

Answer 14

• A person in one category cannot apply if anyone in a higher category is able and willing to act as administrator.
• Those within the same category have an equal right to apply (though a beneficiary with a vested interest is preferred over one with a contingent interest).
• Applicant(s) must explain why anyone with a better right to apply is not doing so (known as “clearing off”).
• Applicants do not need to explain why a person in the same category (with equal entitlement) is not making the application

Question 15

What rule is used to appoint administrators under Grant of letters of Administration

Answer 15

Rule 22 of the non- contentious probate rules

Question 16

What is the order of priority for rule 22?

Answer 16

a) Spouse/ CP (surviving 28 days)
b) child
c) Father/ mother
d) Whole blood sibling
e) Half blood sibling
f) Grandparents
g) Uncle/ aunts of whole blood
h) Uncle/ aunts of half blood

Issue of b, d, e, g, and h are included where their parent has pre-deceased

Question 17

What are the rules of rule 22

Answer 17

If there is no one who can apply:
- crown
- creditor, or a person who does not receive benefit, but could have if the estate was larger

• clear off
• those in the same category have the same level of priority
• The PR of any applicant who survived the deceased but died before taking a grant may apply on their behalf, although an application by a living person in the same category is preferred

-Applicants must demonstrate the nature of familial relationship with the deceased (to evidence which category they fall within).

-In addition, they must also have a beneficial entitlement under the estate (through intestacy rules)

Question 18

What are the rules for rule 20 order of priority

Answer 18

• A person in one category cannot apply if anyone in a higher category is able and willing to act as administrator.
• Those within the same category have an equal right to apply (though a beneficiary with a vested interest is preferred over one with a contingent interest).
• Applicant(s) must explain why anyone with a better right to apply is not doing so (known as “clearing off”).
• Applicants do not need to explain why a person in the same category (with equal entitlement) is not making the application

Question 19

Can minors act as administrators

Answer 19

• A minor may not act as administrator, although it is possible for someone to apply for a grant on their behalf.
• However, an application by an adult with equal entitlement to apply is given priority over an application made on behalf of a minor
• An application on behalf of a minor may be appropriate where:
• No adult with equal or greater entitlement will act
• The minor is the only person within the category having the greatest entitlement, or, all those within the category are minors

Question 20

What are the options if an executor does not want to act?

Answer 20

Renunciation
Reserving power
Appointing an attorney

Question 21

Renunciation
What is it?
Procedure?
Can it be changed?
When can it be denied?

Answer 21

An executor may formally renounce (give up) their right to apply for probate and the administration continues as though they had not been appointed.

Procedure: The executor must sign a form of renunciation. Those who are applying for the grant must submit the form of renunciation to the probate registry as evidence of why an executor appointed by the will is not making the application. The renunciation will be noted on the grant when it is issued

Renunciation is final and the executor cannot later change their mind without court approval

An executor cannot renounce if they have intermeddled with the estate and the court will not accept an attempt to renounce

Intermeddling = taking steps indicating they have ‘accepted their appointment’ and are fulfilling the duty to administer the estate (even if they do not in fact wish to act as executor)

Question 22

Explain reserving power

Answer 22

If PR doesn’t want to act initially, but wants to retain the option to do so later.

To reserve, at least one executor should be willing to act.

To act later, the executor who reserved power can apply for grant of double probate to run concurrently with the original grant BUT can only apply if the administration is not yet complete

There is no form of reservation. However, where power is reserved to an executor, the executor(s) who are applying for probate must give notice of their intention to apply to the executor to whom power is reserved. The reservation of power will be noted on the grant.

Question 23

Appointing an attorney
What if other executors want to act?

Answer 23

• An executor who does not want to be directly involved in the administration may appoint another person as attorney to act on their behalf.
• The power may be given by the executor (donor) to the attorney (donee):
• After the executor has obtained a grant: a PR may delegate their functions to an attorney for a maximum of 12 months. This can be renewed if needed. Notice should be given to the other executors. Once appointed the attorney can carry out administrative steps on behalf of the donor.
• Before a grant has been obtained: executor is delegating the power to apply for a grant. As the attorney is not named in the will as executor they cannot apply for a grant of probate. Instead, if other executors are applying, the executors would apply for a grant of probate and the attorney would make a parallel application for letters of administration (with will).
• The power of attorney must be provided to the probate registry as part of the application

Question 24

But what happens if those entitled to apply refuse to act but also refuse to renounce their right to apply? Or, what if an executor intermeddles in the estate (and is thus unable to renounce) but refuses to apply for the grant?

Answer 24

In these situations, it is possible to obtain a court direction (using the citation process) to:

• Require a person to take out a grant
• Remove their right to apply
• Authorise another person to take on the administration