GRANTS OF REPRESENTATION

Question 1

Courts with Jurisdiction

Answer 1

Most probate business is non-contentious and conducted by** His Majesty’s Court and Tribunals Service (‘HMCTS’). If contentious—in other words, there is a dispute about whether a document is admissible to probate or about who is entitled to a grant of representation—the Chancery Division of the High Court (or County Court if the estate is below £30,000**) becomes involved.

Question 1

what is grants of representation

Answer 1

This is a court document** authorising** the deceased’s PRs to deal with the deceased’s estate and to transfer assets to the benefciaries.

A grant of representation is conclusive evidence as to the terms and due execution of any will, or that the deceased died intestate.

Question 2

3

Non-Contentious Probate Rules

Answer 2

1. Non-contentious business is regulated by the Non-Conten-tious Probate Rules (‘NCPR’).
2. **Note that, for amounts up to £5,000 held in National Savings Bank accounts, National Savings Certifcates, Premium Savings Bonds, or building societies, it may be possible to obtain payment by producing just a death certifcate. This is at the discretion of the institution concerned; the PRs cannot insist. Payment can be made to the person appearing to be entitled to the grant or to be benefcially entitled to the relevant asset.
3. Among other things, the legislation also extends to service and emergency service members’ pensions and civil servants’ salaries and pensions.

Question 3

Chattels and OtherAssets

Answer 3

Chattels such as furniture, jewellery, clothing, and cars can normally be** sold without the PRs having to prove they are entitled to sell such items.** All that is required for these as-sets is production of the death certifcate.

Question 4

Solicitors’ Role

Answer 4

An application for a grant of representation can be made by the personal representatives (‘PRs’) personally or via a pro-bate practitioner. If the PRs instruct solicitors, it is they who are the solicitors’ clients.

Question 5

TYPES OF GRANT

Answer 5

1. probate
2. Letters of Administration with Will Annexed
3. Letters of Administration
4. Grantsde bonis non

Question 6

Probate

Answer 6

A grant of probate is obtained when the deceased leaves a valid will. A grant of probate can only be made to executors,who are usually expressly appointed by the will. If a firm of solicitors is appointed, it is the partners at the date of the will who are entitled to act (subject to contrary intention inthe will).

Question 7

probate
Number of Executors

Answer 7

One executor may obtain a grant of probate and act alone (for example, a surviving spouse or civil partner). A grant of probate cannot be issued to more than four executors, but
different parts of the estate (for example, the testator’s business interests and the remainder of their estate) can have diferent executors.

Question 8

probate
notice

Answer 8

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

Question 9

2

probate
effect

Answer 9

1. The will gives the executors the **legal authority **to deal with the estate. The grant of probate confrms that authority.
2. The testator’s property vests in the executors on death. The grant of probate (or at least an ofce copy of it) will usually need to be produced as evidence of the executors’ authority to act on behalf of the estate, and the grant is required to, for instance, legally sell property owned in the estate’s name, access bank accounts, transfer or sell shares, and so on.

Question 10

3

Letters of Administration with Will Annexed

Answer 10

An application for letters of administration with the will an-nexed is usually made when there is a problem concerning the appointment of the executors in the will. There are sever-al reasons why this type of grant may be needed, including:
1. The appointment of the executor in the will was not cor-rectly drafted;
2. The will is valid, but the deceased did not appoint an executor; or
3. The executor died before the deceased, renounced, or is unable (for example, being a minor or mentally incapable) or unwilling to act.

Question 11

5

Order of Entitlement
letters of administration with will

Answer 11

The NCPR (rule 20) sets out the order of entitlement to a
grant in this situation:
(1) [This category is not relevant to letters of administration with will annexed];
(2) Trustee of the residuary estate;
(3) Any other residuary benefciary. Vested interests are pre-ferred to contingent ones;
(4) PRs of anyone in (3), other than a life tenant of the residue;
(5) Any other benefociary or a creditor; and
(6) PRs of anyone in (5) other than a life tenant.
Essentially, the residuary interest is treated as the principal interest, regardless of its value.
EXAMPLE
Rose died, having made a valid will. However, her appoint-ed executor, Jean, had predeceased Rose, and Rose never got around to updating her will accordingly. The will leaves £10,000 to her cousin, Vince, and the remainder of her estate to her niece, Lesley.
Because she is a residuary benefciary, Lesley is the person with primary rights to apply for a grant of letters of administration with will annexed.

Question 12

Persons of Equal Rank
Letters of Administration with will

Answer 12

When there is more than one person of equal rank but one has a vested interest and one has a contingent interest in
the estate, the court generally prefers an application by the
vested interest benefciary.

Question 13

Special Situations
Letters of Administration with will

Answer 13

1. Note that when a gift in a will fails due to a beneficiary or their spouse having witnessed the will, that beneficiary loses their right to a grant under the list above as a named beneficiary in the will.
2. However, they can claim in a different capacity, for example, as a person entitled on partial intestacy.
3. A minimum of two administrators will be required if there is a minor benefciary or a life interest under a will.

Question 14

Renunciation

Answer 14

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.

Question 15

4

‘Clearing Off’

Answer 15

1. The person applying for a grant must ‘clear off’ (in other words, account for) those having a better right to the grant.
2. Clearing off is achieved through completing the relevant information in the application for a grant.
3. People in the same category as the person applying do not need to be cleared off. So, if there is more than one person in the same class entitled, then any one person in that class may apply without giving notice to the others in that class.
4. If more than one person needs to apply, it may be necessary to seek the additional person from a class of lower priority.

Question 16

2

Letters of Administration

Answer 16

1. Letters of administration are required when the deceased dies intestate (that is, without leaving a will) or when there is a will but all the gifts have failed. This grant gives the named personal representatives (‘administrators’) the legal authority to administer the estate in accordance with the statu-tory rules of intestacy.
2. 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).

Question 17

10

Order of Entitlement
letters of administration

Answer 17

The order of entitlement broadly follows that as set out in an intestacy (rule 22 of NCPR):
(1) Surviving spouse (or civil partner);
(2) Children of the deceased and the issue of any prede-ceased child;
(3) Deceased’s parents;
(4) Deceased’s brothers and sisters of the whole blood (and issue of predeceased);
(5) Deceased’s brothers and sisters of the half blood (and issue of predeceased);
(6) Grandparents;
(7) Uncles and aunts of the whole blood (and issue of prede-ceased);
(8) Uncles and aunts of the half blood (and issue of prede-ceased);
(9) The Crown; and
(10) A creditor of the deceased.
Applicants in categories (1) to (8) must have a benefcial inter-est in the estate. The PRs of a person with a benefcial inter-est 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—un-less the spouse was benefcially entitled to the entire estate

Question 18

Special Cases with Children
Letter of admistration

Answer 18

In terms of children, no distinction is drawn between those who were born to married parents, born to unmarried par-ents, or adopted. Stepchildren are not included unless they were adopted by the deceased.

Question 19

Special Situations
letters of administration

Answer 19

Like letters of administration with will annexed, a minimum of two administrators will be required if there is a minor ben-
efciary or a life interest under a will. A grant can be issued to a maximum of four administrators, and no power can be
reserved.

Question 20

Renunciation
letters of administration

Answer 20

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

Question 21

Clearing Off
letters of administration

Answer 21

The clearing of rules for an application for letters of admin-istration with will annexed also apply to an application for let-ters of administration. Those having a better right to a grant **must be cleared of by **completing the relevant information in the application for a grant, but those in the same category do not need to be.

Question 22

3

Grantsde bonis non

Answer 22

1. A grant of administration de bonis non is 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.
2. It will be granted to the person who would have been entitled had the original PR never taken the grant.
3. No such second grant is needed if one of several PRs has died or if** a ‘chain of representation’ exists. A chain of representation happens 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。

EXAMPLE
Felix dies appointing Elizabeth to be his executor. Elizabeth proves the will but dies before completing the administra-tion of Felix’s estate. Elizabeth appointed Philip to be her executor. By proving Elizabeth’s will, Philip automatically becomes the executor by representation of Felix and is able to complete the administration of Felix’s estate. It is not permissible for Philip to refuse to be executor by representation of Felix’s estate.
Note that** if Felix had died intestate, there would have been no chain of representation in the event of Elizabeth’s death as an administrator of Felix’s estate**. A grant de bonis non would be needed to complete the administration of Felix’s estate.

Note that the chain of representation does not apply 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 .

Question 23

2

MINORS AND INCAPACITATED PERSONS

Answer 23

1. Minors cannot take a grant. If they are one of several executors or potential administrators, a grant is made to the adult PRs with power being reserved to the minor in the case of a grant of probate.
2. If the minor is the only or last surviving PR, a limited grant of letters of administration is made to the mi-nor’s parent or guardian for the use and beneft of the minor until age 18. Similar rules apply when a PR is sufering from mental incapacity.

Question 24

POWERS OFTHE COURT

Answer 24

The court has discretion to make a grant to someone other than the person who is prima facie entitled under the NCPR—for example, if a potential PR is bankrupt or in prison. The court can also remove an existing PR and appoint a substitute.