u4. Application of Grants

Question 1

What are Personal Representatives 4 main duties?

Answer 1

Personal Representatives have 4 main duties:

1. Obtain a Grant of Representation 
2. Collecting and managing the estate assets 
3. Paying the debts and other liabilities of the estate 
    4. Distributing the assets of the estate to those entitled to them

Question 2

What are the 3 grants of representation?

Answer 2

1. A grant of probate (Valid Will and executor) - EXECUTOR
2. A grant of Administration (No Valid Will) - ADMINISTRATOR
3. A grant for letters of administration with will annexed (valid will but no executor) - ADMINISTRATOR

Question 3

What is the effect of a Grant of Probate?

Answer 3

Although Executors are the legal owners of the estate under the will from the moment of death, they must get a grant of probate to be able to deal with the estate.

Question 4

What 3 Steps must be completed to apply for a grant of Probate?

Answer 4

1. Must file evidence that they have submitted an inheritance tax return to HMRC and paid any tax due.
2. Must file a legal statement verified by a statement of truth with the probate registry confirming:
   • The Desacsed has died, the date of the death, and the deseacsed domicle

• Whether the deceased died testae or intestate
• On which grounds the PR is entitled to the grant
• How much the estate Is worth (gross and net)
• The inheritance tax has been paid

3. Will or Clearing off

-If a grant of probate, the executive must provide the whole will

-if a grant of administration, the administrator must provide evidence of clearing off - this is that the are the first in line, or if they are not the first, why the persons in from of them are unable or unwilling to take on the administration

Question 5

What is clearing off?

Answer 5

Clearing off is where the list of appointing an administrator is followed.

Evidence of clearing off would be showing you are the first possible person, or if you are not, why the persons in front are unable or unwilling to take on the administration.

Question 6

What can someone do to prevent somone applying for a grant in probate?

Answer 6

If someone has suspisions about the will, they can enter a caveat. The caveat prohibits the probate registry from issuing a grant of probate until the caveat is either removed or expires (6 months unless renewed)

Question 7

What can an executor do if someone has entered a caveat?

Answer 7

They will respond with a warning giving the caveator 8 days to do 1 of 2 things:

1. Enter an Apperance - Apply to the court to hear their objections if they have a contrary interest, such as believing they are the one who should make the application. (NCPR 44(1)
2. Summons for Direction - If they do not have a contrary interest, they can request the court considers if the named executor is the appropriate person to act.

If the caveator does not take one of these steps within the 8 days, the caveat will be removed and the probate process will go forward.

Question 7

What are the 3 situations in which a limited grant can be granted?

Answer 7

1. Where there are difficulties with the PR, and no other PR is available and so someone else must be appointed (Grant De Bonis Non Adminstratis)
2. Where the estate is going to waste or being lost and some immediate steps need to be taken (Grant Ad Coligenda Bona)
3. Where some parties of the will are fighting about it in court (The Grant Pendente Lite)

Question 8

What are the 3 situations a limited grant can be applied for?

Answer 8

1. De Bonis Non Adminstratis - NO PR

Where the appointed PR has died or dissaperared, the administration cannot be left and so grant de bonis allows another person to be appointed as an administrator or executive and apply for the grant.

2. Ad Colligenda Bona - WASTE OR LOSS

When the PR is not et empowered to deal with the estate as the application of grant has not yet been granted, but there is a specific asset that needs to be dealt with in the meantime as otherwise there will be a waste or loss. a Grant ad colligenda can allow for powers to deal with that specific asset until the full grant.

3. Pendente Lite - LITIGATION

Question 9

What is Grant Ad Colligenda Bona and give a practical example.

Answer 9

Example - Anwen is the PR of the estate, but has not yet been granted the full grant of administration. On the estate there is a strawberry crop that will perish if not farmed and sold within the next 2 weeks.

Effect - A Grant Ad Colligenda Bona can allow Anwen to manage the estate to the extent of the stawbery crop until the full grant.

Question 10

What is Grant De Bonis Non Adminstratis and give a practical example

Answer 10

The appointed PR has dissaperared, and no one has heard from him. There is no other PR, and so the estate is not being adminstrated.

Effect - A Grant De Bonis Non Adminstratis can allow for another person to be appointed as either executor or administrator and so apply for a grant and adminstrate the estate.

Question 11

What is Grant Pendente Lite and give a practical example

Answer 11

Where there is ongoing litigation, such as a caveat freezing all administrative dealings, a Grant Pendente Lite can be applied for.

Effect - This will allow for matters to be dealt with in the meantime by another administrator. The person who should be appointed would be the person next appointed following NCPR Rule 22.

Question 12

Summarise the 3 documents that must be filed to apply for the grant?

Answer 12

1. Inheritence Tax Return
2. Statement of Truth
3. Authority to apply for grant (either the will, of evidence of clearing off)

Question 13

Who can apply for a grant of probate or administration?

Answer 13

1. The Person entitled to the grant.
2. A probate practitioner

Question 14

How long must you wait after a death before applying for a grant of probate, a grant of administration with the will annexed, or a grant of administration?

Answer 14

A grant of probate, or an adminstration with the will annexed = atleast 7 days after death.

A grant of administration = atleast14 days after death

Question 15

What documents can an applicant provide to show they have completed Inheritance Tax (IHT) requirements?

Answer 15

1. A HMRC Stamped IHT 421 Form, which shows that the inheritance tax has been paid
2. A HMRC Stamped IHT 200 Form, which shows that the estate is excepted from IHT.

Question 16

What form is filled out when IHT is due which provided a 421 form in evidence of the tax being paid?

Answer 16

A IHT 400 form is filled out and will provide a IHT 421 Recipt showing inheritance tax has been paid.

Question 17

What form is filled out when IHT is not due which provides a IHT 200 form evidencing no IHT is due?

Answer 17

A IHT 205 is filled out which provides a IHT 200 form evidencing no tax Is due.

Question 18

What grounds must be met for an ‘Excepted Estate’ - ie no IHT to be paid?

Answer 18

The deceased was domiciled in the UK and…

The gross value of the deceased estate was:

1. Less than the IHT Threshold of £325,000
2. Less than £1m, and the property is passing to the spouce, civil partner, or charity and so there is no IHT
3. Less than £750,00 and a claim is made to transfer all of an insured Nil Rate Band (NRB)

Question 19

Why is there an issue of paying IHT before the grant?

Answer 19

Despite having the power from the will, many banks will not allow access to the deceased bank before the grant of probate.

In addition, administrators have no right until the grant of probate.

Question 20

What options are there to pay the IHT if the PR does not have the money?

Answer 20

1. The Direct Payment Scheme (IHT 423 Form) (UK Banks only)
2. Borrow from Benificary
3. Borrow from the Bank

They can borrow from the bank against the estate, usually on the agreement it will be repaid from the first assets available after the grant.

Question 21

What is the Direct Payment Scheme and what does the PR need to do.

Answer 21

The direct payment scheme allows for the bank to transfer the IHT directly to HMRC after the PR has provided a IHT 423 form to the bank which sets out the amount payable. This is the most common method unless there is not enough funds or the bank is not apart of the scheme. UK Banks only

Question 22

Why must there be a statement of truth with the application for grant of representation?

Answer 22

NCPR Rule 8(1)

Question 23

What does NCPR Rule 8(1) provide?

Answer 23

All applications for a grant of representation must have a statement of truth.

Question 24

What happens if the orignal will is not available to be submitted in the application for grant of probate?

Answer 24

NCPR Rule 54(1) allows for a copy or draft to be submitted.

Question 25

Can accpeted alterations be included in the application for grant of probate if made before the death?

Answer 25

Yes, NCPR Rule 14(2) allows for any accepted alteration made before death to be included in addition to the original will when applying for the grant of probate.

Question 26

What does Rule 8(4) Provide?

Answer 26

When administrators are applying for grant they must evidence that they are the first person in line to be the administrator, and if they are not the first person, why it has been skipped to them.

Question 27

What does rule 44(10) prescibe?

Answer 27

Allows cavetors with a contray intrest to ‘Enter an Apperance’

Question 28

What act allows for a grant of probate to corporations at the high court?

Answer 28

S.115 Senior Courts Act 1981

Question 29

What happens if there is no attestation clause, and so presumption of no due execution?

Answer 29

NCPR Rule 12 allows for the probate registry to cal for an affidavit or witness statement confirming due execution.

Question 30

Do chattels and cash require a grant of probate?

Answer 30

No

Question 31

What are the 4 circustances the probate will require Affidavit evidence in addition to a statement of truth?

Answer 31

1. Due Execution (If there is no attestain clause, or not signed, affidavit evidence can confirm due execution)
2. Date (Where the will is undated Affdavit evidence can provide the date.
3. Knowledge and Approval. (Affivavit evidence can prove the testator had knowledge and approval of the will if there are concerns)
4. Plight and Coniditon of the Will - Unsigned and unwitnssed alterations can be accepted with affidavit evidence.