Grant Of Representation

Question 1

Who are the PRs?

Answer 1

1. Either the deceased executors where there is a valid well and an effective appointment of executors
   2. Administrators with a well annexed – valid will but no person willing or able to act as executor
2. Administrators where there is no valid will
3. Administrators (simple and with Will annexed) will be appointed in accordance with Non-Contentious Probate Rules 1987

Question 2

Numbers of PRs required

Answer 2

1. One executor can obtain the grant and act alone
2. Administrators (simple and with Will annexed) – two will be required where there is a minority or life interest in the estate

Question 3

Missing/ unknown creditors and beneficiaries

Answer 3

1. PRs are responsible for administrating estate correctly
2. If PRs failed to pay creditor/beneficiary they will be personally liable to that person
3. Can protect themselves against unknown claims by advertising under Trustee Act 1925 S27
4. PRs should make purchases which prudent purchase of land would make

Question 4

S27 Trustee Act 1925

Answer 4

1. 2 months
2. Advertised as early as possible
3. Advertise in:
   a) London Gazette
   b) local paper in the area in which land owned by the deceased was situated
   c) such other like notices that a court might order
4. Must specified time for claims to be sent
5. When the time limit has expired they can distribute the estate
6. Provided PRs wait for the time period they will be protected from liability if an unknown claimant later appears

Question 5

Beneficiary who cannot be traced

Answer 5

1. The Trustee Act S27 Will not protect PRs who know that there is a person with a claim but cannot find them
2. Where a beneficiary cannot be traced consider:
   a) keeping back assets
   b) indemnity from beneficiaries
   c) Insurance
   d) Benjamin order- applying to court for an order allowing distribution of the estate on the basis the claimant is dead

Question 6

What is the grant of representation?

Answer 6

1. Issued to the PRs of a person who has died, The grant is a court order as evidence of the PRs title to deal with the deceased estate
2. It is not essential for the PRs to instruct solicitors act for them in obtaining the grant

Question 7

Types of grant of representation

Answer 7

1. Probate – this will be issued to the executors named in the will or codicil
2. Letters of administration with the Will annexed- this is appropriate where there is a valid well but for some reason it is not possible to issue a grant of probate an executor
3. Letters of administration – this grant “simple administration is issued when the deceased died intestate

Question 8

The application for the grant

Answer 8

1. This will need to be supported by certain papers which the solicitor will need to prepare
2. A digital statement of truth will need to be signed
3. HMRC account may need to be prepared
4. The application is made by lodging the documents (including any wills and codicils) at the probate registry
5. The appropriate court fee will also need to be paid (Currently a flat fee of £155)
6. The probate registry will examine the documents, if everything is in order The grant is prepared, signed and sealed and sent to the solicitor
7. This process normally takes 10 to 14 days
8. Once the grant has been obtained PRs will need to be advised of their powers and duties

Question 9

The effect of the grant

Answer 9

1. Once the grant has been issued by the court it is conclusive evidence as to the terms and due execution of the will
2. Or that the deceased died intestate

Question 10

The effect of the grant for executors

Answer 10

1. The title to act derives from the will or Codicil
2. The deceased property invest in the PRs on death and the executor can deal with it without the issue of the grant
3. However, the grant is the only acceptable proof of the executors title, and will in practice be required to deal with the deceased property

Question 11

The effect of the grant for administrators

Answer 11

1. The issue of the grant actually confers the power to act, prior to this the administrators do not have the authority to act
2. It is not retrospective, back to the date of the death

Question 12

When is the grant not necessary?

Answer 12

1. Where the property passes on death directly to those entitled and does not pass through the hands of the PRs
2. Joint property passing by survivorship
3. Property not forming part of the deceased persons estate
4. Some small amounts of property passing to the PRs (under £5,000 under AE Payments Act 1965)
5. Chattels or cash

Question 13

Grant of probate

Answer 13

1. Can only be made to an executor who will usually be appointed by the will or codicil

2. If the firm of solicitors is appointed it will be the partners at the date of the will who will be entitled to act, the clothes should be inserted in the will to the contrary
3. The appointment of an executor may be implied where the will shows an intention that a particular person should perform the functions of the executor

Question 14

Letters of administration with the will annexed

Answer 14

1. This is the appropriate grant where there is a valid will but a grant of probate cannot be made in favour of an executor as:
   a) The will has failed to appoint an executor
   b) Those appointed are dead
   c) those appointed are minors (under the age of 18)
   d) those appointed are unwilling to act

Question 15

Rule 20 Non Contentious Probate Rules (NCPR)

Answer 15

1. This governs the order of entitlement to a grant where the deceased left a will but where it is not possible to make a grant of probate in favour of an executor
2. For a person in a later category to establish entitlement it will be necessary to clear off those in a higher category with a better right to apply for the grant
3. The order depends on entitlement to the deceased property
4. Person entitled to residue has principal interest whatever the value of the residue in relation to other gifts in the will

Question 16

Letters of administration, simple administration

Answer 16

1. Suitable where there is no valid will
2. Order of entitlement is governed by rule 22 NCPR
3. For anyone in the lower category to be able to establish a right it will be necessary to account for those with a better right, clear off

Question 17

PRs Capacity

Answer 17

1. In principle a testate is free to appoint anyone as a PR
2. Any person entitled can apply for a grant under NCPR rules 20 and 22
3. There is no rule automatically barring anyone who is insolvent or has a criminal conviction

Question 18

PRs- several claimants probate

Answer 18

1. An application for a grant of probate or executors named in the will must be accounted for
2. Testator can appoint any number of executors
3. Grant can only be issued to up to 4 executors- S114 Supreme Court Act 1981
4. Rule 27 states that notice of application for the grant must be given to any executors whom power is being reserved
5.  assault executor has full power to act – even in cases where minority or life interests arise

Question 19

PRs renunciation

Answer 19

1. No one can be forced to accept office as an executor or administrator
2. Person entitled to a grant can be forced to make up their mind as to whether to take it or not
3. A executor is deemed to accept office if he takes the grant or intermeddles in the estate
4. Pronunciation must be in writing and signed by the executor and state that he has not intermeddled
5. An executor has an alternative to renouncing, they can have power reserved, this means that the executor will not be involved in applying for the grant at this stage but if circumstances change they can apply for a grant and become involved in the administration at a later stage

Question 20

Administrators- renunciation

Answer 20

1. Admin only takes office by taking the grand
2. No amount of intermeddling prior to this will constitute acceptance
3. Pronunciation is effective in writing and his file at the probate registry

Question 21

Requirements of the probate registry

Answer 21

1. Before the grant can be obtained the PRs will have to submit an account to HMRC and pay any inheritance tax due
2. Any supporting affidavit evidence will need to be prepared
3. Every application for a grant of representation must be supported by statement of truth

Question 22

Statement of truth

Answer 22

1. There is no need to swear and oath to lead to the grant instead the statement of truth must be signed by the persons making the statement
2. The jurat has been replaced and is now a declaration
3. The will no longer needs to be matched by anyone
   4. The date of the will must now be included in the statement of truth