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Wills > Pre-Grant Administration Steps > Flashcards

Pre-Grant Administration Steps Flashcards

1
Q

Who are the people permitted by law to administer the deceased’s estate?

A

The personal representatives

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2
Q

What is the name for a personal representative appointed by a Will?

A

Executor

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3
Q

What is name for a personal representative appointed by statute?

A

Administrator

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4
Q

What is the name of the High court order that confirms the authority of PRs to act?

A

Grant of Representation

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5
Q

What does the grant of representation establish?

A
  • the authority of PRs to act (in particular their right to collect assets and distributes the estate) and
  • validity of the deceased’s will or that the deceased died intestate
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6
Q

Does the PR confer power to collect and realise all the assets of the deceased?

A

No - only those assets that pass under the succession estate.

Assets that pass outside the succession estate are beyond the reach of PRs

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7
Q

If a PR is an executor, where do they derive their authority to act?

A

From the Will. The Grant merely confirms their authority

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8
Q

If a PR is an administrator, where do they derive their authority to act?

A

From the Grant itself - they have no authority to act prior to the Will being granted

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9
Q

What are the three main grants of representation?

A
  • grant of probate
  • grant of letters of administration (with Will)
  • grant of letters of administration
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10
Q

What should the grant of probate confirm?

A
  • the identity and date of death of the deceased
  • that the deceased left a valid will
  • the identity of the appointed executors
  • value of the estate to which the grant applies (the succession estate)
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11
Q

When will the Grant of Probate be the appropriate Grant of Representation?

A

For estates where

  • the deceased left a valid Will
  • the Will appoints executors
  • at least one of the executors appointed is going to act
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12
Q

Whose name in the Grant of Probate issued in?

A

In the name of the executors who apply

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13
Q

Is a grant of probate required even if the Will does not dispose of any/all of the deceased’s property?

A

Yes

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14
Q

What happens if the appointment of the executor under the Will is limited eg to specific assets or jurisdiction?

A

This limitation will be reflected in the authority conferred by the Grant

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15
Q

Who may take out the Grant of Probate?

A

The named executors or person appointed by named executor to act on their behalf under power of attorney

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16
Q

When will Grant of Letters of Administration (with will) be the appropriate grant of representation?

A

When the deceased left a valid Will but the Will appoints no executors who are willing/able to act

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17
Q

When will Grant of Letters of Administration be the appropriate grant of representation?

A

Where the deceased died without having made a valid Will ie died intestate

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18
Q

What assets can be dealt with without a Grant?

A
  • assets that fall outside the succession estate
  • assets which can be distributed under the Administration of Estates (Small Payments) Act 1965
  • personal household possessions
  • cash
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19
Q

What assets can be distributed under the Administration of Estates (Small Payments) Act 1965 without a Grant?

A
  • National Savings (bank accounts, saving certificates, premium bonds)
  • Friendly Society and Industrial and Provident Society deposit accounts
  • Arrears of salary and wages
  • pensions where the deceased was a member of the police, fire authority, Air Force or army
  • building society accounts
  • up to limit of £5,000 per asset (if asset exceeds that then Grant will be needed to deal with whole of the asset)
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20
Q

Does the Administration of Estates (Small Payments) Act 1965 compel holders of assets to pass over the asset without a Grant?

A

No only makes payment permissible

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21
Q

What can PRs do in relation to personal possessions and cash owned by the deceased?

A

Can dispose of them without having to produce Grant.

If jointly owned assets, will need to consent of other owners before selling.

PRs will need to make sure that any gifts are not disposed of directly in the Will

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22
Q

Who will register the death and obtain death certificate?

A

Could be PRs but most likely family

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23
Q

What must be done before a funeral can take place?

A

Death must be registered

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24
Q

Is there a legal obligation to follow funeral wishes set out in a Will?

A

No but there is a moral obligation

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25
Q

What responsibilities and duties do PRs have in relation to securing assets?

A
  • duty to preserve the value of the estate and may be personally liable to account for loss or damage to assets
  • ensure valuable items and documents are kept safe
  • should notify insurers of any vacant properties and secure the properties
  • if vehicle left unattended and off road, insurers and DVLA should be notified
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26
Q

What must PRs do in relation with the Will pre-Grant?

A
  • must locate the original Will and any codicils
  • they must be satisfied that the Will or codicils are valid
  • if no Will, then PRs should make enquiries to confirm this
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27
Q

What happens if a valid Will has been lost?

A

Appropriate steps must be taken to re-construct it

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28
Q

Must Wills be registered on the National Wills Register?

A

Optional

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29
Q

Are Wills public documents?

A

Not before the Grant is obtained, but they are after the Grant is obtained

30
Q

What schedule should PRs compile in order to get the Grant?

A

They should compile a schedule of the deceased’s assets and liabilities including:

  • identifying and valuing estate assets
  • identifying the deceased’s creditors
  • work out what steps are required to manage the distribution of the assets
  • calculate the IHT due
  • establish whether the estate is solvent
  • estimate what each beneficiary is entitled to
31
Q

What should PRs do once a schedule of assets and liabilities has been compiled?

A

PRs should contact any appropriate organisation to:

  • notify them of the death and provide a copy death certificate
  • request confirmation of the value of the asset at the date of death
  • request instructions on how to close an account/transfer ownership of the items to the PRs
32
Q

Who is entitled to take out the grant of probate?

A

All executors names in the Will are entitled to take out the grant of probate

Only those named are entitled although an executor can appoint a someone to act on their behalf under a power of attorney

33
Q

When is an executor named in a Will unable to act?

A
  • pre-decease the testator
  • are a minor
  • lack capacity
  • are the testator’s former spouse and divorce took place after Will was made
34
Q

How could a minor appointed an executor nevertheless become an executor?

A

power can be reserved until they 18 when they could apply for a grant if administration remains incomplete

35
Q

How many executors are required and what is the maximum that can be named on the grant?

A

Minimum of one executor is required.

Maximum of four can be named on the grant (power can be reserved to any additional who can then apply for grant at later date if vacancy arises)

36
Q

What happens when Grant of Probate has been taken out and one of the PRs dies before administration is complete?

A
  • If at least one PR remains, they can continue with the administration. If the number of PRs fall below minimum number needed then additional PR can be appointed.
  • If no PR remains, the either chain of representation applies or grant of letter of administration de bonds non is issued
37
Q

What is chain of representation and when will it apply?

A

Will apply if last surviving executor dies having appointed an executor to their own estate and this person takes out a grant of probate for their dead executor’s estate.

On taking out application to become executor of dead executor’s estate, they will automatically become executor to the original estate as well without an additional grant being required

38
Q

What is a grant of letter of administration de bonis non and when will it be used?

A

Three requirements must be met:

  • the administration is incomplete
  • there are no remaining personal representatives
  • there has been a previous grant of representation
39
Q

Under Grant of Letter of Administration (with Will), who is entitled to make an application for the grant?

A

List of priority for taking the Grant under Rule 20:

  • executor
  • trustee of the residuary estate
  • any residuary beneficiary or where there is a partial intestacy, a beneficiary of the estate under intestacy
  • the PRs of anyone in (c) other than a trustee or life tenant of the residue
  • any other beneficiary or a creditor
  • PRs of anyone in (e)

A person in one category cannot apply if anyone in a higher capacity is able and willing to act as administrator

Those within the same category have an equal right to apply (though beneficiary with vested interest is preferred over one with a contingent interest)

40
Q

If someone is seeking Grant of Letter of Administration (with Will), what must they do if there is someone who has great entitlement to apply?

A

They must explain why anyone with greater entitlement to apply is not doing so ie clearing off

41
Q

Under Grant of Letter of Administration, who is entitled to make an application for the grant?

A

Order of priority under Rule 22 NCPR:

1) surviving spouse or civil partner

2) children of the deceased

3) father and mother of the deceased

4) whole blood siblings (share both parents)

5) half-blood siblings (share one parent)

6) grandparents

7) uncles/aunts of whole blood

8) uncles/aunts of half blood

Issues of 2, 4, 5, 7 and 8 are included where there parents have pre-deceased the deceased

They must also have a beneficial entitlement under the estate

42
Q

Under Grant of Letter of Administration, who is entitled to make an application for the grant if there are no family members who can apply?

A
  • the Crown claiming bona vacantia
  • if the Crown does not apply, then a creditor or person who does not receive benefit (but would have done if the estate was larger may apply
43
Q

If someone is seeking Grant of Letter of Administration, what must they do if there is someone who has greater entitlement to apply?

A

They must explain why anyone with greater entitlement to apply is not doing so ie clearing off

44
Q

What happens if any applicant who survived the deceased but died before the taking the grant of letter of administration?

A

Their PR can apply on their behalf although an application by a living person within the same category is preferred

45
Q

Can a minor act as an administrator?

A

No but possible for someone to apply for grant on their behalf.

Will be appropriate when:

  • no adult with equal or greater entitlement will act
  • the minor is the only person within the category having the greatest entitlement or all those within the category are minors
46
Q

What is the maximum and minimum number of administrators?

A
  • maximum of four
  • minimum of one, unless minor beneficiary or life interest in estate where two will be required
  • if two administrators are required by only one able to apply from that category of entitlement then that person may apply with someone from next category of entitlement
47
Q

What happens if an executor appointed by a Will is unable to act?

A

The remaining executors can apply for the grant of probate but will need to explain why all of those appointed under the will are not applying

48
Q

What can happen if an appointed executor is a minor beneficiary or lacks capacity?

A

If an executor is a minor, probate can be issued to the other executors with power reserved to the minor, who is entitled to make an application upon reaching 18 (Rule 33 NCPR). Power may also be reserved to an executor who lacks capacity.

49
Q

What options does an executor have if they are unwilling to act?

A
  • renunciation
  • reserving power
  • appointing an attorney
50
Q

What is renunciation?

A

Where executor formally renounces their right to apply for probate and the administration continues as though they had not been appointed

51
Q

How can an executor renounce?

A

By signing a form of renunciation

52
Q

What must the other executors do when applying for the grant if one executor has renounced?

A

They must submit the form of renunciation to the probate registry as evidence of why an executor appointed by Will is not making the application

The renunciation will be noted on the grant when issued

53
Q

If an executor renounces, can they change their mind?

A

No - unless they get court approval

54
Q

When can the executor not renounce?

A

When they have intermeddler

55
Q

What is intermeddling?

A

When a person takes steps indicating they have accepted their appointment and are fulfilling the duty to administer the estate (even if they do not in fact wish to act as executor)

56
Q

What will amount to intermeddling and what will not?

A

What will:

  • obtaining, receiving or holding the deceased’s assets or forgiving any debt or liability due to the estate
  • paying debts, selling assets, disposing of personal property (under common law)

What won’t:

  • acts of common humanity such as arranging a funeral or taking steps to secure assets
57
Q

What is reserving power?

A

The executor does not want to act initially and will not apply for the grant, but wants to retain the option to apply for probate later

58
Q

When can an executor reserve power?

A
  • if there is at least one other executor who does take the grant of probate
  • can do so even if they have intermeddled
59
Q

What must an executor who has reserved power to act do if they decide later that they do want to act?

A

They can apply for grant of double probate to run concurrently with original grant

Administration must not yet be complete

60
Q

What must the other executors do when applying for the grant if one executor has reserved power?

A

The executors who are applying for probate must give notice of their intention to apply to the executor to whom power is reserved. The reservation of power is noted on the grant

61
Q

What is appointing an attorney to be an executor?

A

An executor who does not directly want to be involved in administration, may appoint another person as attorney to act on their behalf.

62
Q

When may an executor transfer power to an attorney to act on their behalf?

A
  • after executor has obtained a grant - for maximum of 12 months. Notice should be given to other executors
  • before a grant is obtained - they would have to do so by application for letters of administration (by will) and other executors would apply for grant of probate
63
Q

What would happen is all executors are unable or unwilling to act?

A

Grant of probate cannot be issued.

Grant of letters of administration (with will) would be appropriate and administrator will be appointed

64
Q

When are administrators unable to act?

A
  • when they predecease the testator or survived testator but die before grant
  • are a minor
  • lack capacity
  • do not have beneficial entitlement to the estate
65
Q

What can administrators do if they are unwilling to act?

A

They can renounce or appoint an attorney.

They cannot reserve power

66
Q

What is the effect of renunciation as an administrator?

A

They are unable to act - that is final.

The next best entitled person is able to apply,

67
Q

What form must renunciation take for administration?

A
  • must be signed and submitted to the probate registry with the application for grant
  • renunciation will then be noted on granted
68
Q

When can a potential administrator renounce?

A
  • anytime before the grant is issued
  • not prevented from renouncing even if they have intermeddled with the estate
69
Q

Does an executor who has renounced, but is also capable of being an administrator have to renounce their rights to being an administrator?

A

Yes - no automatic renunciation just because executor renounces being executor

70
Q

When can someone be appointed as an attorney for an administrator?

A
  • after administrator has been appointed by grant then administrator can delegate responsibilities to attorney for maximum of 12 months which can be renewed if needed. Other administrators should be informed
  • before a grant has been obtained then delegated individual can apply in own name by supplying power of attorney to probate registry as part of application
71
Q

What should happen if person entitled to take out grant refuse to act and also refuse to renounce their right?

A

Possible to obtain court direction to:

  • require a person take out a grant
  • remove their right to apply
  • authorise another person to take on the administration

Wills (14 decks)

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