The law and practice in connection with an application for a grant of representation Flashcards
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’?
Collective name for either grant of probate (if there is a valid will) or grant of administration (if there is no valid will)
If a valid will has been left and the deceased has died testate, what should the executors apply for?
Grant of probate
If no valid will has been left and there is full intestacy, what should be administrators apply for?
Grant of administration
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?
Apply for a grant of administration with the will annexed
Who are the legal owners of the assets where there is no will?
Ownership of an intestate deceased’s assets does not pass to the administrators until the grant of administration has been made
Who are the legal owners of the assets where there is a valid?
Executors are the legal owners of the deceased’s estate until the will from the moment of death
Why is it vital to obtain a grant of administration?
Ownership of the deceased’s assets do not pass to the administrators until the grant of administration is made
Why is it vital to obtain a grant of probate?
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)
What is a ‘common form’ grant of probate?
Grant of probate that there is no dispute associated with the will
What is a ‘solemn form’ grant of probate?
Grant of probate where there has been a dispute about the will dealt with by the Chancery Division of the High Court
Who issues grants of probate?
Principal Registry of the Family Division (i.e., Family Court) or one of its distinct registries (s 105 SCA 1981)
What is the process of obtaining a grant?
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
What must the legal statement to the probate registry include?
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
What else must be submitted to probate registry for an application for a grant of probate?
- Whole original will (including any codicils)
- All testamentary documents left by the deceased
- Dates of those documents
What else must be submitted to probate registry for an application for a grant of administration?
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
What does it mean to ‘enter a caveat’ (s 44 NCPR)?
Raising a red flag with the probate registry
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 are the requirements for appointing an attorney to act for an executor/administrator AFTER the grant has been taken out?
1) Maximum 12 months (renewable)
2) Notice to other executors/administrators
Under which rules are personal representatives appointed for grants of representation (both with/without wills)
1) With will - NCPR 20
2) Without will - NCPR 22
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)
Grant of probate - intestacy doesn’t matter
Which assets do not require a grant of representation?
1) Personal possessions
2) Cash
3) Small Payments Act assets under £5,000
Which assets are included in the Small Payments Act?
1) National savings
2) Friendly Soc./Industrial & Prov Soc. accounts
3) Salary/wage arrears
4) Police, fire, army, RAF pensions
5) Building society accounts
What is the ‘order of priority’ under NCPR 20
1) Executor
2) Residuary trustee
3) Residuary/intestacy beneficiary
4) PR of (3)
5) Creditor/other non-beneficially entitled party
6) PR of (5)
What is the ‘order of priority’ under NCPR 22?
1) Spouse (28 days)
2) Children
3) Parents
4) Full sibs
5) Half-sibs
6) Grandparents
7) Full aunts/uncles
8) Half-aunts/uncles
Which assets do not devolve on personal representatives at all?
1) Jointly owned property
2) Nominated insurance policies/lump sums/assets
3) DMCs
4) Trusts of which the deceased was a beneficiary
Is a grant needed for estates not entirely comprised of assets not requiring a grant?
Yes
What 5 steps should be taken by PRs before applying for a grant?
1) Death cert/funeral
2) Secure assets
3) Locate will/codicil
4) Identify beneficiaries
5) Schedule of assets & liabilities
Will a photocopy of a will suffice for applying for a grant of representation?
NO - original copy only, unless special permission is granted
When should chattels require a professional, rather than estimated, valuation?
If >£500 or unusual
When might a named executor be unable to act?
1) Death before testator/grant taken out
2) Minor
3) Lacking capacity
4) Divorced after will created
When might a potential administrator be unable to act?
1) Death before testator/grant taken out
2) Minor
3) Lacking capacity
4) No beneficial entitlement (NCPR 22 only)
When might power to apply for a grant be reserved?
1) Executor is not YET able to act (e.g. a minor)
2) More than 4 named executors
What is required to exercise a reserved power to apply for a grant of probate?
Grant of double probate
What 2 things can happen if a PR dies before administration is complete and there are no other PRs?
1) Chain of representation
2) Grant of letter of administration (de bonis non)
What are the requirements for a chain of representation?
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
What are the requirements for a grant of letters of administration de bonis non?
1) Incomplete administration
2) No remaining PRs (+ chain doesn’t apply)
3) Previous grant of representation made
What happens if no one can/will apply for a grant of letters of administration (without a will)?
Grant can be taken out by either:
- Crown; or
- Creditor/non-beneficially entitled person (provided they would have benefited if the estate was larger)
What must be evidenced to apply for a grant under NCPR 22?
1) Familial relationship
2) Beneficial entitlement
3) Superior rights cleared off
When can someone with no immediate entitlement to the estate apply for a grant?
If they would have benefited had the estate been larger
What is the minimum/maximum amount of applicants to whom a grant of letter of administration (with/without a will) can be made?
Minimum: 1 (unless minor/life interest)
Maximum: 4
How many PRs are required when a minor/life interest is present?
Minimum 2
Can a minor act as an administrator?
No - power cannot be reserved by an administrator either
What 3 options are available if an executor is unwilling to act?
1) Renunciation
2) Reservation of power
3) Appointment of an attorney
What prevents an executor from renouncing their right to apply for a grant of representation?
If they have intermeddled
Does intermeddling prevent an executor from reserving power?
No
Does intermeddling prevent an administrator from renouncing their right to apply for a grant of representation?
NO
How long can an executor/administrator delegate their functions to an attorney?
Max. 12 months (can be renewed)
What options are available to an administrator who is unwilling to act?
1) Renunciation
2) Appointment of an attorney
Reservation of power NOT possible
When should form PA1A be used?
Applying for a grant of letters of administration for an intestate estate
When should form PA1P be used?
Applying for a grant of probate, or grant of letters of administration (with will)
When should a paper application for grant of representation be made?
For a non-standard grant or more complicated application under NCPR 20/22
When is NCPR 20 used to appoint an administrator?
Valid will but no executors acting
When is NCPR 22 used to appoint an administrator?
Intestate estates
Which estates are free from Probate Registry fees?
Estates worth <£5,000
Which items are required for ALL grant applications?
1) Application form (online/PA1A/PA1P)
2) Fee
3) Original will
Which form regarding IHT is sent to HMRC and why is it important to do this ASAP?
IHT400 - probate registry will not issue a grant until HMRC confirms IHT has been paid via IHT421
What are the requirements for a valid affidavit?
1) Signed + dated by all parties
2) Signed by a witness (independent solicitor/commissioner for oath) + all details
3) Follows on from text immediately
Under NCPR 20 (Valid will; no executors), who has the greatest entitlement to apply for a grant of representation?
Beneficiary of the residuary estate
