Executors' entitlement to the grant Flashcards
Who may take out the grant of probate?
Only those named in the will may take out the grant and they cannot give the right to someone else.
Can a named executor appoint someone to act on their behalf?
Yes, a named executor may formally appoint someone to act on their behalf under a power of attorney.
What are the conditions that make an executor unable to act?
- Pre-deceased the testator
- Are a minor
- Lack mental capacity
- Are the testator’s former spouse/civil partner after divorce/dissolution post-will
How many executors are required for a grant of probate?
Only one executor is required, but it is common for at least two to be appointed.
What happens if not all appointed executors apply for the grant of probate?
The remaining executors may still apply but must explain to the probate registry why all are not applying.
What is the maximum number of executors that can be appointed on the grant?
A maximum of four executors may be appointed on the grant.
What happens to the administration if a proving personal representative (PR) dies?
- If at least one remains, the remaining may continue with the administration.
- If no PR remains and the deceased Executor appointed an executor of their estate - chain of representation applies and E2 automatically becomes executor of the original estate (no need for second grant)
- If no PR remains and they did not appoint their own executor, second grant of representation issued (grant of letters of administration de bonis non)
What are the three requirements for a grant of letters of administration de bonis non?
- Administration is incomplete
- No remaining PRs
- There has been a previous grant
What is the process if an executor is unable to act?
The remaining executors can still apply for the grant of probate but must explain why not all are applying.
What happens if an executor cannot act because they are a minor?
Probate can be issued to the other executors, with power reserved to the minor.
What does ‘citation’ mean in the context of executorship?
A means of forcing reluctant or hesitant executors to decide whether or not to accept executorship.
How can an unwilling executor renunciate?
An executor must sign a form of renunciation and submit it as evidence of why they are not applying.
When can an executor not renounce?
If they have intermeddled - i.e taken steps indicating acceptance of appointment and fulfilling duty to administer the estate.
What happens if an executor reserves power?
The executor who reserves power can apply for a grant of double probate later. The reservation of power should be noted on the grant when an initial reservation is made.
There must be at least one other executor who takes out a grant of probate.
How can an unwilling PR appoint an attorney?
- After the executor has obtained a grant - PR can delegate their functions for a maximum of 12 months, and notice should be given to the other executors
- Before a grant has been obatined - they would delegate their power to apply for a grant, and the attorney would have to apply for a grant of letters of administration with will.
When might an administrator be unable to act?
- Pre-deceased the testator
- Are a minor
- Lack capacity
- Do not have a beneficial entitlement
What happens if all executors are unwilling or unable to act?
Grant of probate cannot be issued.
What can an unwilling administrator do?
- Renounce - sign and submit a form of renuncation to the probate registry with the application for grant. Can renounce even if you have intermeddled.
- Appoint an attorney
What can the court do if those entitled to apply refuse to act?
- Require the person to take out a grant
- Remove their right to apply
- Authorize another person to take on the administration
Using the citation process
How can an administrator appoint an attorney?
- after an administrator has been appointed - PR can delegate for a max of 12 months
- before a grant has been issued - power of attorney must be provided to the probate registry as part of the application
What is the role of citations in the probate process?
Citations can compel individuals to act or allow others to take over administration if those entitled refuse.
