Grants of representation Flashcards
Administration - preliminary steps
What are the pre-grant steps?
Pre-grant steps:
- death certificate / funeral (practical steps)
- secure estate assets
- list of assets - taxable estate and succession estate
- locate (original) will / codicil
- check for executors
- basis of distribution & identify beneficiaries
- schedule of assets & lifetime transfers
- tax - IHT400
What are the statutory duties of a personal representative before the application for the grant?
A duty to report to HMRC about the estate assets and liabilities and pay any IHT due
Pre-grant steps - establishing the value of commonly held assets (single items)
PRs must compile an accurate list of the deceased’s assets, which involves identifying and valuing the estate assets.
To establish the value of commonly held assets (single items worth more than £500) - a formal probate valuation should be obtained
Advise the client (as part of client next steps) to obtain a formal valuation of the assets (where needed) to start the application for probate
NCPR 20
Deceased left a valid will but no executors are able or willing to act
NCPR 22
Deceased died intestate
Grant of letters of administration (with will) - NCPR 20
NCPR 20 Order of Priority (statutory order of priority to be appointed as administrator)
a) Executor
b) Trustee of residuary estate
c) Any residuary beneficiary or beneficiary under intestacy
d) PRs of anyone in (c) other than a trustee or life tenant of the residue
e) any other beneficiary or creditor
f) PRs of anyone in (e)
NCPR 20 - correlates with distribution of the estate under the will, rather than familial relationship
Entitlement to apply
- A person in one category cannot apply if anyone in a higher category is able and willing to act
- Those in same category have equal right
- Applicants must explain why anyone with a better right to apply is not doing so (clearing off)
Grant of letters of administration (NCPR 22)
This is the appropriate grant where the deceased died without a valid will
NCPR 22 Order of entitlement
a) surviving spouse or civil partner (spouse cannot apply until at least 28 days after the deceased’s death)
b) children of the deceased
c) father and mother of the deceased
d) whole blood siblings
e) half-blood siblings
f) grandparents
g) uncles / aunts of whole blood
h) uncles / aunts of half blood
Issue of category b,d,e,g and h included if their parent has pre-deceased
Applicants need to show the nature of their familial relationship AND must also have a beneficial entitlement under the estate
Number of administrators required
- Only one administrator is required
- Unless there are minor or a life interest in the estate, in which case two are required
Number of executors required
Only one executor is required (even if there are minor or life interests). But, for practical reasons, it is common for two to be appointed
Application process: applying for a grant
Probate Registry will not issue a grant unless the applicant can demonstrate their entitlement
Information is provided by:
- completing and then posting a paper application form to Probate Registry
- submitting an online application via HMCTs service and answering relevant questions
Probate fee
The probate fee is now £300. The fee per sealed copy of the
grant remained at £1.50
Paper applications
- PA1A: deceased died without leaving a will (NCPR 22)
- PA1P: deceased left a valid will (executors act under the will, or administrator appointed by NCPR 20)
Application process
Applicants are required to:
- confirm identity of the deceased and applicants
- justify the type of grant request and their entitlement to act as PR
- provide information about the value of the estate and IHT
- Complete the legal statement
How can an applicant justify their entitlement to act as a PR?
- Executors are entitled to act by virtue of appointed under the will - submit original testamentary document as proof
- Applicants under NCPR 20 should state which category they are and clear-off anyone with a better right
- Applicants under NCPR 22 must state their familial relationship and identify which category of applicant they are, and clear-off anyone with a better right
Documents to be submitted to the probate registry
- The original will
- Probate registry fee
- A form of renunciation (if applicable)
- affidavit evidence (if applicable)
- power of attorney (if an attorney is applying)
- certified copy of death certificate (if relevant)
IHT form is NOT sent to the Probate Registry
When is a paper grant application mandatory?
- Second grant of probate e.g., to an executor who previously reserved power
- Grants to a PR where chain of representation applies
- Grants where original will is missing or there are issues with the will
- Grants to attorneys
- Grant under NCPR 20 if life interest arises
Who must sign the grant application?
All persons making it (or their legal representative acting for them)
What is an affidavit?
Formal written statement of fact which a person signs under oath
- Person swears or affirms the contents of the document are true
For a valid affidavit:
The authenticating statement (jurat) must be:
- signed by all parties and dated
- completed and signed by person witnessing and their name, address, qualification
Types of affidavit?
- Affidavit of due execution: confirms compliance with s9 Wills Act 1837 / knowledge & approval / date of execution
- Affidavit as to alterations: confirms timing of alteration
- Affidavit of plight and condition: confirms condition of will when it was executed and its condition following death
- Affidavit of search: if there is evidence to suggest another document was supposed to be attached to the will, it confirms what enquiries were made and searches carried out to locate the missing document
Where does liability and burden of IHT fall in respect of LCTs/PETs and items passing under vs outside the free estate?
LCT during lifetime:
- General rule: Person in whom the asset vests (donee), using the settled assets
- Donor liable if they elect to pay tax or trustees do not pay tax
Failed PET / LCT that becomes chargeable after death
- General rule: person in whom the assets vest (donee), using settled assets
- If they fail to do so within 12 month deadline, PRs should pay it using residue
Free estate (assets passing to PRs under will / intestacy)
- General rule: IHT is paid from residue by deceased’s PRs as a general testamentary and administration expense
- Variation could mean: gifts are paid subject to a deduction of IHT attributable to them; or residue bears burden of IHT due in respect of assets outside the free estate
Items outside free (succession) estate:
- General rule: these items bear the burden of IHT attributable to them and the liability payment falls on the beneficiary of the item
