The law and practice in connection with an application for a grant of representation

Question 1

What are the 3 types of grant of representation and when are they required?
1) Grant of Probate (valid will + appointed executors willing/able to act)
2) Grant of Letters of Administration With Will (valid will + no executors appointed/acting)
3) Grant of Letters of Administration (Intestacy)What is a ‘grant of representation’?

Answer 1

Collective name for either grant of probate (if there is a valid will) or grant of administration (if there is no valid will)

Question 2

If a valid will has been left and the deceased has died testate, what should the executors apply for?

Answer 2

Grant of probate

Question 3

If no valid will has been left and there is full intestacy, what should be administrators apply for?

Answer 3

Grant of administration

Question 4

Where there is a valid will but no executor willing or able to act, what should the person entitled to be an administrator apply for?

Answer 4

Apply for a grant of administration with the will annexed

Question 5

Who are the legal owners of the assets where there is no will?

Answer 5

Ownership of an intestate deceased’s assets does not pass to the administrators until the grant of administration has been made

Question 6

Who are the legal owners of the assets where there is a valid?

Answer 6

Executors are the legal owners of the deceased’s estate until the will from the moment of death

Question 7

Why is it vital to obtain a grant of administration?

Answer 7

Ownership of the deceased’s assets do not pass to the administrators until the grant of administration is made

Question 8

Why is it vital to obtain a grant of probate?

Answer 8

While the executors have ownership of the deceased’s estate from the moment of death, the grant of probate provides evidence that they are in fact able to deal with the deceased’s property (which is often required to distribute estate)

Question 9

What is a ‘common form’ grant of probate?

Answer 9

Grant of probate that there is no dispute associated with the will

Question 10

What is a ‘solemn form’ grant of probate?

Answer 10

Grant of probate where there has been a dispute about the will dealt with by the Chancery Division of the High Court

Question 11

Who issues grants of probate?

Answer 11

Principal Registry of the Family Division (i.e., Family Court) or one of its distinct registries (s 105 SCA 1981)

Question 12

What is the process of obtaining a grant?

Answer 12

PRs must:
- File evidence that they have submitted an inheritance tax return to HMRC and paid any tax due
- Lodge a legal statement verified by a statement of truth to the probate registry

Question 13

What must the legal statement to the probate registry include?

Answer 13

Verified by a statement of truth, the legal statement must confirm:
- Testator details. Full name of testator, any other names by which they held property, their postcode
- Death details. That the deceased has died, date of death and deceased’s domicile
- Will. Whether the deceased died testate or intestate
- Entitlement. In what manner or on what grounds the PRs are entitled to the grant
- Estate value. How much the estate is worth (gross and net)
- IHT. Submit a receipt from HMRC to prove that IHT has been paid

Question 14

What else must be submitted to probate registry for an application for a grant of probate?

Answer 14

• Whole original will (including any codicils)
• All testamentary documents left by the deceased
• Dates of those documents

Question 15

What else must be submitted to probate registry for an application for a grant of administration?

Answer 15

Evidence of clearing off, either:
- Evidence they are the first appropriate person to be administrator under r 8(4) NCPR
- If they are not the first appropriate person, why the people in front of them are either unable or unwilling to take on administrator

Question 16

What does it mean to ‘enter a caveat’ (s 44 NCPR)?

Answer 16

Raising a red flag with the probate registry

Question 17

What are the 3 types of grant of representation and when are they required?

Answer 17

1) Grant of Probate (valid will + appointed executors willing/able to act)
2) Grant of Letters of Administration With Will (valid will + no executors appointed/acting)
3) Grant of Letters of Administration (Intestacy)

Question 18

What are the requirements for appointing an attorney to act for an executor/administrator AFTER the grant has been taken out?

Answer 18

1) Maximum 12 months (renewable)
2) Notice to other executors/administrators

Question 19

Under which rules are personal representatives appointed for grants of representation (both with/without wills)

Answer 19

1) With will - NCPR 20
2) Without will - NCPR 22

Question 20

What grant is required where the deceased had a valid will, willing and able executors but a gift failed without a substitution clause (e.g. partial/full intestacy)

Answer 20

Grant of probate - intestacy doesn’t matter

Question 21

Which assets do not require a grant of representation?

Answer 21

1) Personal possessions
2) Cash
3) Small Payments Act assets under £5,000

Question 22

Which assets are included in the Small Payments Act?

Answer 22

1) National savings
2) Friendly Soc./Industrial & Prov Soc. accounts
3) Salary/wage arrears
4) Police, fire, army, RAF pensions
5) Building society accounts

Question 23

What is the ‘order of priority’ under NCPR 20

Answer 23

1) Executor
2) Residuary trustee
3) Residuary/intestacy beneficiary
4) PR of (3)
5) Creditor/other non-beneficially entitled party
6) PR of (5)

Question 24

What is the ‘order of priority’ under NCPR 22?

Answer 24

1) Spouse (28 days)
2) Children
3) Parents
4) Full sibs
5) Half-sibs
6) Grandparents
7) Full aunts/uncles
8) Half-aunts/uncles

Question 25

Which assets do not devolve on personal representatives at all?

Answer 25

1) Jointly owned property 2) Nominated insurance policies/lump sums/assets 3) DMCs 4) Trusts of which the deceased was a beneficiary

Question 26

Is a grant needed for estates not entirely comprised of assets not requiring a grant?

Answer 26

Yes

Question 27

What 5 steps should be taken by PRs before applying for a grant?

Answer 27

1) Death cert/funeral 2) Secure assets 3) Locate will/codicil 4) Identify beneficiaries 5) Schedule of assets & liabilities

Question 28

Will a photocopy of a will suffice for applying for a grant of representation?

Answer 28

NO - original copy only, unless special permission is granted

Question 29

When should chattels require a professional, rather than estimated, valuation?

Answer 29

If >£500 or unusual

Question 30

When might a named executor be unable to act?

Answer 30

1) Death before testator/grant taken out 2) Minor 3) Lacking capacity 4) Divorced after will created

Question 31

When might a potential administrator be unable to act?

Answer 31

1) Death before testator/grant taken out 2) Minor 3) Lacking capacity 4) No beneficial entitlement (NCPR 22 only)

Question 32

When might power to apply for a grant be reserved?

Answer 32

1) Executor is not YET able to act (e.g. a minor) 2) More than 4 named executors

Question 33

What is required to exercise a reserved power to apply for a grant of probate?

Answer 33

Grant of double probate

Question 34

What 2 things can happen if a PR dies before administration is complete and there are no other PRs?

Answer 34

1) Chain of representation 2) Grant of letter of administration (de bonis non)

Question 35

What are the requirements for a chain of representation?

Answer 35

1) Original executor (E1) dies after grant but before admin is complete 2) E1 appointed an executor (E2) for their own estate 3) E2 has taken out a grant of probate for E1's estate

Question 36

What are the requirements for a grant of letters of administration de bonis non?

Answer 36

1) Incomplete administration 2) No remaining PRs (+ chain doesn't apply) 3) Previous grant of representation made

Question 37

What happens if no one can/will apply for a grant of letters of administration (without a will)?

Answer 37

Grant can be taken out by either: - Crown; or - Creditor/non-beneficially entitled person (provided they would have benefited if the estate was larger)

Question 38

What must be evidenced to apply for a grant under NCPR 22?

Answer 38

1) Familial relationship 2) Beneficial entitlement 3) Superior rights cleared off

Question 39

When can someone with no immediate entitlement to the estate apply for a grant?

Answer 39

If they would have benefited had the estate been larger

Question 40

What is the minimum/maximum amount of applicants to whom a grant of letter of administration (with/without a will) can be made?

Answer 40

Minimum: 1 (unless minor/life interest) Maximum: 4

Question 41

How many PRs are required when a minor/life interest is present?

Answer 41

Minimum 2

Question 42

Can a minor act as an administrator?

Answer 42

No - power cannot be reserved by an administrator either

Question 43

What 3 options are available if an executor is unwilling to act?

Answer 43

1) Renunciation 2) Reservation of power 3) Appointment of an attorney

Question 44

What prevents an executor from renouncing their right to apply for a grant of representation?

Answer 44

If they have intermeddled

Question 45

Does intermeddling prevent an executor from reserving power?

Answer 45

No

Question 46

Does intermeddling prevent an administrator from renouncing their right to apply for a grant of representation?

Answer 46

NO

Question 47

How long can an executor/administrator delegate their functions to an attorney?

Answer 47

Max. 12 months (can be renewed)

Question 48

What options are available to an administrator who is unwilling to act?

Answer 48

1) Renunciation 2) Appointment of an attorney Reservation of power NOT possible

Question 49

When should form PA1A be used?

Answer 49

Applying for a grant of letters of administration for an intestate estate

Question 50

When should form PA1P be used?

Answer 50

Applying for a grant of probate, or grant of letters of administration (with will)

Question 51

When should a paper application for grant of representation be made?

Answer 51

For a non-standard grant or more complicated application under NCPR 20/22

Question 52

When is NCPR 20 used to appoint an administrator?

Answer 52

Valid will but no executors acting

Question 53

When is NCPR 22 used to appoint an administrator?

Answer 53

Intestate estates

Question 54

Which estates are free from Probate Registry fees?

Answer 54

Estates worth <£5,000

Question 55

Which items are required for ALL grant applications?

Answer 55

1) Application form (online/PA1A/PA1P) 2) Fee 3) Original will

Question 56

Which form regarding IHT is sent to HMRC and why is it important to do this ASAP?

Answer 56

IHT400 - probate registry will not issue a grant until HMRC confirms IHT has been paid via IHT421

Question 57

What are the requirements for a valid affidavit?

Answer 57

1) Signed + dated by all parties 2) Signed by a witness (independent solicitor/commissioner for oath) + all details 3) Follows on from text immediately

Question 58

Under NCPR 20 (Valid will; no executors), who has the greatest entitlement to apply for a grant of representation?

Answer 58

Beneficiary of the residuary estate