Getting the grant of representation

Question 1

What are the two grants available for PRs?

Answer 1

Grant of probate - valid will
Grant of administration - no valid will

Question 2

What would be applied for if there is a valid will but no executor able or willing to act?

Answer 2

The person entitled to be an administrator must apply for a grant of letters of administration with the will annexed

Question 3

When does ownership of an intestate deceased’s assets pass to an administrator?

Answer 3

When the grant of administration has been made

Question 4

When does the ownership of the deceased’s estate under a will pass to the executors?

Answer 4

The legal title passes from the moment of death

Question 5

What is needed in order to obtain a grant?

Answer 5

The PRs must file:
- evidence showing they submitted an inheritance tax return
- paid any tax due
- lodge a legal statement verified by a statement of truth confirming the deceased has died, the date of death, the deceased’s domicile, whether testate or intestate, grounds of entitlement to act, estate worth and inheritance tax paid
- plus is testate the whole original will

Question 6

If someone is suspicious about the will, what can they do?

Answer 6

Enter a caveat which means the probate registry cannot issue a grant of probate until it is removed or expires (6 months)

Question 7

What can the executors do if someone enters a caveat?

Answer 7

The executors respond with a ‘warning’ which obligates the caveator to either respond by entering an appearance or ask for a summons for directions within 8 days

Question 8

What does ‘entering an appearance’ mean?

Answer 8

This sets out that the caveator’s has an interest which is contrary to the interest of the person applying for the grant

Question 9

What does a ‘summons for directions’ mean?

Answer 9

A request to the court to consider whether the named executor is an appropriate person to act

Question 10

What happens if the caveator does not respond within 8 days?

Answer 10

The caveat can be removed and the probate process will go forward

Question 11

When does administration apply?

Answer 11

Intestacy and also if the originally named executor of a will cannot now act

Question 12

What are the limited grants?

Answer 12

• grant de bonis non administris
• grant ad colligenda bona
• grant pendente lite

Question 13

When is grant de bonis non administris applied for?

Answer 13

When the PR has disappeared from the scene before they could complete or begin administering the estate, or if the executors die whilst administering the estate or lose mental capacity

Question 14

When is grant ad colligenda bona applied for?

Answer 14

Usually more likely in administration and it can assist in between death and the full grant when the PRs are not empowered to deal with the assets because they do not have title to them. Sometimes this can be a problem because a valuable asset needs to be managed in some way to prevent it being completely lost

Question 15

When is grant pendente lite applied for?

Answer 15

When a temporary grant is needed until litigation (such as a caveat) is finished so things such as the payment of debts can be sorted

Question 16

What is the general timeframe rule the probate registry usually follow when issuing grants?

Answer 16

The probate registry will not as a general rule issue a grant of probate or administration with the will annexed less than 7 days after the death or a grant of administration less than 14 days after death

Question 17

What must the applicant use to evidence any tax due on the estate has been paid?

Answer 17

A schedule IHT421 form which has been stamped by HRMC unless it is an excepted estate

Question 18

What is an excepted estate?

Answer 18

An estate that has an exception from making a full tax return under an IHT400 - deceased domiciled in the UK and the gross value of the estate is:
- less than £325,000
- less than £1,000,000 but no tax payable because passing to a spouse or charity
- less than £750,000 and claim is made to transfer all of unused nil rate band

Question 19

What are the tax forms?

Answer 19

IHT205 - excepted estate (now not needed online)
IHT400 - normal estate
IHT421- evidence that tax has been paid

Question 20

How do the PRs pay the tax?

Answer 20

The executors do not need to wait for the grant but banks will be unwilling to hand over assets without a grant so if the deceased has money in an account the bank can pay HMRC directly. The PRs present a IHT423 and HMRC confirms directly with the probate registry that the tax has been paid.
If this is not possible the PRs will have to borrow from the beneficiaries or from a bank

Question 21

If the will does not contain an attestation clause or there are doubts as to execution what will the probate registry do?

Answer 21

Call for an affidavit or witness statement confirming due execution. If they are not satisfied, probate will be refused

Question 22

When might the probate registry require an affidavit for ‘plight and condition’?

Answer 22

Where the will has been physically damaged including pieces cut/torn or where the will appears to have staple, pin, tape or paperclip impressions which are now missing