Obtaining Grant of Representation Flashcards

Question

re: paying IHT when is this stage relevant?

Answer 1

* This stage is only relevant if IHT is payable before GOR can be obtained

Answer 2

if the estate is excepted

Answer 3

* If IHT is payable, before submitting IHT400, a reference number will need to be applied for using schedule IHT422 These documents will then need to be sent to HMRC: o IHT400 (or IHT401 for those domiciled outside the UK); o Relevant schedules i.e. schedule 403 for any lifetime transfers

Answer 4

* IHT400 is an inventory of D’s assets and liabilities. It is used to claim tax relief and calculating IHT payable.

Answer 5

* IHT400 should be completed within 12 months of the end of the month in which D died (usually done within 6 to comply with IHT time limits on interest)

Answer 6

* Must wait 20 days from sending IHT400 until applying for GOR, otherwise the application will be blocked

Answer 7

IHT is due at the end of the 6 month following D’s death and before obtaining GOR i.e. DOD 10 Jan, IHT payable by 31 July. Late payments attract interest. The 1st payment on the instalment option, IHT on a PET and any additional IHT on an LCT need to be paid within 6 months, but not before GOR

Answer 8

The 1st payment on the instalment option, IHT on a PET and any additional IHT on an LCT need to be paid within 6 months, but not before GOR

Answer 9

* 10 yearly payments  1st payment due is due at the end of the 6 month following D’s death, the remaining 9 payments are made yearly after that

Answer 10

* IHT payable is apportioned using the estate rate

Answer 11

The above is in relation to IHT payable by PRs on the death estate. * The instalment option is also available to the donee of a PET and where there is additional IHT on an LCT if: o The person benefitting from the transfer is paying the IHT; and o They retained ownership from the date of transfer from DOD * Only available on certain types of property, i.e.: o Land of any description (inc. properties) o Business or an interest or a business o Quoted or unquoted shares which gave D control of the company immediate before death o Unquoted shares which do not give control, if either:  They are at least worth £20k and 10% of the company’s holding;  HMRC is satisfied IHT cannot be paid in one sum without hardship;  IHT on all instalment property amounts to at least 20% of the total IHT

Answer 12

* Interest on land  interest is payable on the amount of IHT outstanding from the previous year (i.e. £10k IHT. 2020 £1k paid. Interest on £9k added to ‘21) * All other property  interest is only added if payment is late

Answer 13

* If the instalment property is sold, all IHT and interest is immediately payable

Answer 14

The above is in relation to IHT payable by PRs on the death estate. The instalment option is also available to the donee of a PET and where there is additional IHT on an LCT if: o The person benefitting from the transfer is paying the IHT; and o They retained ownership from the date of transfer from DOD

Answer 15

1. Direct payment scheme 2. Life assurance 3. Assets realisable without GOR 4. Loans from Bs 5. Bank 6. National Savings Bank Accounts and proceeds from National Savings Certifications / Government stock 7. Heritage property in lieu of tax 8. Grant on credit

Answer 16

if payable to the estate, they may agree to pay HMRC direct

Answer 17

some banks, pension and life assurance and brokers will agree to pay IHT direct from D’s account (not a quick process). PRs need to send the bank ID information and Form IHT423 for each bank transferring money with IHT400 to HMRC.

Answer 18

some assets i.e. chattels, cash and money held in certain accounts up to £5k (released by court order) could be used

Answer 19

may give a loan. Often want an undertaking. UT should be limited to ‘such proceeds and some into X control’. Expensive – often fees and interest.

Answer 20

if it is impossible to pay in advance, HMRC may allow a grant to be obtained on credit.

Answer 21

can offer HMRC an asset in lieu of tax. Secretary of state must agree. High standard. Asset must be ‘pre-eminent for its national, scientific, historic or artistic interest’

Answer 22

can be used to pay HMRC

Answer 23

* HMRC will email a receipted summary on Form IH421 to HMCTs and inform the PRs this has been done * HMCTs will not issue the GOR until they receive this receipt

Answer 24

this is the same whether applying by paper or online (determined by probate value): o If estate is less £5,000 or less  no fee o More than £5,000  £300

Answer 25

- PA1P Only: Wills - Applicants - Deceased - Settled land - IHT and probate value - Excepted estates - Legal statement

Answer 26

Date of wills and codicils, details of any foreign wills and whether D married or formed a CP after making the will (as these may revoke the will)

Answer 27

If the name in the will is different to ID, both names must be put on the form

Answer 28

* D’s name, address, DOB, DOD, where domiciled at DOD and marital status If D held assets in different names, these must be included (otherwise, other names are not necessary)

Answer 29

Whether D had vested interest in a Settled Land Act settlement (now rare due to TOLATA)

Answer 30

* i.e. a person is applying on behalf of another (C) who is entitled to take GOR * If C lacks capacity, medical evidence and the LPA is needed If there is no LPA and no one other than C is entitled to take GOR, grant can be made to another person on behalf of C

Answer 31

* Must confirm whether IHT400/IHT41 was completed Must state the gross and net probate value

Answer 32

As no IHT400 was completed, the following information is required: o A declaration that it is an excepted estate and if they are claiming any unused NRB from a pre-deceased spouse/CP; o Gross value of estate after IHT and specified (+exempt) transfers o Net value of estate minus allowance debts o Net qualifying value of the estate HMRC has 60 days from issue of GOR to ask for additional information, if they do not the excepted estate receives automatic clearance Transpires estate is not excepted  PR must submit IHT400 within 6 months

Answer 33

Statement of truth and confirmation PRs will administer the estate in accordance with the law and that content of the form is truthful Acknowledge that criminal fraud proceedings may be brought against them for providing evidence that is deliberately untruthful / dishonest as well as a revocation of GOR

Answer 34

* The will and codicil must be enclosed with the application for GOP and GLA.

Answer 35

Evidence should accompany the application where there is doubt as to: o Execution and/or capacity; o Knowledge and approval o Remote witnessing (key thing to look at for re the above 3 – is there an attestation clause? Is it defective? Has it been amended to reflect situation?) o Plight and condition i.e. will has been altered, attempted revocation or mark suggesting something was previously attached o Lost will  if the original is lost, probate can still be obtained if there is a copy. This copy would need to be sent with the application)

Answer 36

* Sufficient evidence = affidavit or witness statement verified by a statement of truth from a relevant person such as a witness, doctor or lawyer

Answer 37

Can be 1 PR, but advisable to have more than one.  1 PR can give the purchaser good receipt for proceeds of sale of land  Re will trusts  2 trustees or 1 trust corporation are needed If a B has a life interest or minority interest (i.e. they are a minor):  There must be 2 administrators (A) or 1 E

Answer 38

If a B has a life interest or minority interest (i.e. they are a minor):  There must be 2 administrators (A) or 1 E 2 trustees ad need to give good receipt for land

Answer 39

* i.e. D left a will with a named E who is willing to act * E can still apply even if the will fails to dispose of the estate

Answer 40

* Form PA1P or online (solicitor must always do online unless proving will)

Answer 41

* Max 4 Es can apply in respect of the same property (see: partial GOP)

Answer 42

o Power can be reserved to other Es if a vacancy arises

Answer 43

They cannot apply for GOP. The other Es take GOP. If E was the only named executor, their LPA can take GOP

Answer 44

GOP given to adult Es with power reserved to the minor to take grant at a later date. If administration not completed by the time they are 18, they can apply for grant of double probate, allowing them to act alongside other Es

Answer 45

parent/guardian will need to apply for GLA for the benefit of the minor. The grant lapses when they turn 18. If administration is not complete when they are 18, E can apply for cessate grant of probate.

Answer 46

second GOP when the first was conditional or limited in some way and this has now been fulfilled.

Answer 47

where GOP is obtained in relation to only part of the estate

Answer 48

* Common where part of the estate requires specific expertise

Answer 49

* This means there could be 4 general Es and 4 Es in relation to other assets

Answer 50

someone appointed as E renounces their right to take GOP

Answer 51

* Can only renounce if they haven’t meddled in the estate i.e. selling D’s chattel o Once they have meddled, they must take GOP

Answer 52

* Form PA15  must be signed by renouncer and witnessed by another * If they are also a T, they will need to disclaim trusteeship

Answer 53

* Power may be reserved as above and where E does not want to initially act but does not want to take irrevocable step to renounce

Answer 54

* E applies for GOP with power reserved to the other person. E must confirm in the application that they have notified the other person of the application * If power is reserved, substitution is not automatic. The other person will need to apply in the future.

Answer 55

* 1 A can apply unless there is a life or minority interest, then 2 As must apply

Answer 56

o If there are not 2 As in the same rank to take GLA, someone from the next rank can take GLA with the other person o The court may dispense with the need for 2 As in special circumstances

Answer 57

* Max. 4 As. It is not possible for an A to have power reserved.

Answer 58

* A lower category can only apply if no one in a higher category will take GLA

Answer 59

People in the same category can make joint or separate applications o Separate applications and one has a contingent interest  the court will (generally) appoint the person with the vested interest o Joint applications  different interests do not have an effect

Answer 60

the court will (generally) appoint the person with the vested interest

Answer 61

A minor cannot be an A nor can they apply. o If no one else in the category is willing to apply, the parent / guardian can apply for ‘GLA for the minor’s use and benefit’ (same rules as above)

Answer 62

When making the application, A will need to explain: o Why GLA is being applied for (i.e. no E was prepared to act); o The capacity in which they are applying (i.e. residuary legatee); o Clearing off (i.e. why those above are not applying, e.g. pre-deceased); o Their entitlement (i.e. residuary B under IR) * An application can be made without notice to others of equal entitlement

Answer 63

o If no one else in the category is willing to apply, the parent / guardian can apply for ‘GLA for the minor’s use and benefit’ (same rules as above)

Answer 64

* Any person entitled to apply can renounce using Form PA16 They would also need to renounce any trusteeship, if applicable

Answer 65

* Form PA1P or online (can only do online if lots of conditions are met, i.e. 1 applicant & they are the only person entitled)

Answer 66

* A does not lose the right to renounce by intermeddling

Answer 67

Applicable when there is a will but the Es are unwilling/unable to act, i.e.: o The will does not appoint an E; o The will appoints a spouse/CP as sole E, but they have divorced; or o All Es have predeceased or renounced.

Answer 68

Order of priority of those entitled to GLA where D died after 1 Jan 1926 (r20): 1. The executor 2. Residuary legatee or devisee holding in trust (i.e. the trustee(s) of the residue) 3. Residuary legatee or devisee (i.e. the recipient of the residue) o Those with a vested interest take priority over those with a contingent one o inc. Bs with a life interest and Bs who receive the residuary under IR 4. The PR of a deceased residuary legatee or devisee o i.e. B survived T and took a vested interest (not inc. a life interest), but died before they obtained GOR 5. Any other legatee/devisee or creditor of D o Those with a vested interest take priority over those with a contingent one 6. The PR of any other legatee/devisee or creditor or D (same as above)

Answer 69

D left no will or an invalid will

Answer 70

* Form PA1A or online (can only do online if lots of conditions are met, i.e. 1 applicant & they are the only person entitled)

Answer 71

* Only those with a beneficial entitlement (excl. 9 & 10) can apply

Answer 72

* Applicable to those who D died after 1 Jan 1926 (r22) (this is the same as IR): 1. Surviving spouse/CP 2. Children of D (and their issue if the child has died) o Under IR, a surviving spouse and children will share the estate if there are enough assets. This means they can make a joint application. However, if the child applies alone, they would first need to clear off the spouse. o In effect, D’s grandchild could take GLA if their parent has died. 3. Parents of D 4. Full siblings (and their issue if the sibling has died) o In effect, D’s niece/nephew could take GLA if their parent has died. 5. Half siblings (and their issue if the sibling has died) (not inc. step siblings) 6. Grandparents 7. Full aunts and uncles (and their issue if the sibling has died) o In effect, D’s cousins could take GLA if their parent has died. 8. Half aunts and uncles (and their issue if the sibling has died) 9. Treasury solicitor  if no one else has a beneficial interest in the estate and they are claiming bona vacantia on behalf of the Crown 10. Creditors and anyone who doesn’t have an immediate beneficial interest, but might in the future in the event of an accretion .

Obtaining Grant of Representation Flashcards

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