WE 4 & 5 - Executors & administrators Flashcards
Where does the entitlement to act as an executor derive?
from the will
Can an executor give their right to take out the grant to someone else?
No - although they may appoint someone to act on their behalf.
When is an executor unable to act?
- if they pre-deceased the testator.
- are a minor.
- lack capacity
- are the testators former spouse/civil partner and the divorce/dissolution took place after the will was made.
How many executors are required?
How many executors can be named on the grant?
- One.
- A maximum of 4 can be named on the grant
What happens if the sole executor dies after grant?
- Chain of representation applies (essentially the PR of the deceased PR take over - no additional grant needed), or
- Grant of letters of administration de bonis non is issued.
There is no will. Where does an administrator get their authority?
Administrators are appointed under the NCPR and their authority to act derives from the grant.
When will a Grant of Letters of Administration (with Will) apply?
Where the deceased left a will but there are no executors willing/able to act.
What is the statutory order of entitlement to be appointed as administrator under a grant of letters (with will)?
a) executor
b) trustee of the residuary estate,
c) any residuary beneficiary or, where there is a partial intestacy, a beneficiary of the estate under intestacy.
d) the PRs of anyone in (c) other than a trustee of a life tenant of the residue.
e) any other beneficiary or a creditor.
f) PRs of anyone in (e).
those within the same category have an equal right to apply
what is ‘clearing off’
The applicants for administrator of grant of letters (with will) must explain why anyone with a better right to apply is not doing so.
Note - no need to clear off people in the same category.
When will a Grant of Letters of Administration apply?
Where the deceased dies without a will
What is the statutory order of entitlement to be appointed as administrator under a grant of letters?
Must have a beneficial entitlement under the estate:-
a) surviving spouse/civil partner
b) children of the deceased
c) father and mother of deceased
d) whole blood siblings.
e) half-blood siblings
f) grandparents
g) Uncles/Aunts of whole blood
h) Uncles/Aunts of half blood
- The crown
- If the crown does not apply, a creditor, of person who does not receive a benefit (but would have done had the estate been larger).
what if an applicant survived the deceased but dies before the grant?
The applicant’s PRs can apply, but living person is preferred.
Can a minor act as an administrator?
No, but someone can apply for a grant on their behalf. However, an adult of equal entitlement will take preference.
An application may be appropriate where:
- no adult of equal or greater entitlement will act, or all people within the most entitled category are children.
- How many administrators are required under letters of administration / letters of administration (with will)?
- One
How many administrators are required under letters of administration / letters of administration (with will) if there is a life interest in the estate or a minor?
- Two
What is the maximum number of applicants to be administrators are required under letters of administration / letters of administration (with will)
- Four
When is the mandatory online process used for applying for probate?
Most Grant of Probate applications
When is the mandatory paper process used for applying for probate?
- second grant (i.e. someone who reserved power)
- PR under chain of representation
- Original will missing / issues with it
- Attorneys
- life interests
What are the two paper application forms and what are they used for?
- PA1A - (no will - administration)
- PA1P - (will - probate)
NOTE - letters of Admin with Will still uses PA1P
Who are the forms sent to
Probate registry
What information is required of the Probate application
- Original Will (not returned)
- ID deceased and applicants
- Justify type of grant (i.e. Probate, Letters of Admin, etc.)
- Justify their entitlement (proof that others are dead, renounced, reserved, notified)
. - value of estate
- IHT status of estate (IHT 400 sent? Tax paid?)
. - legal statement confirming will act appropriately
What do applicants under NC20 (admin with Will) need to show?
- which category of applicant they are
- clear-off anyone in a higher category
- state whether any minor beneficiary or life interest arises (will need 2 admins for trust)
What do applicants under NC22 (admin without Will) need to show?
- familial relationship / which catagory they are
- clear-off anyone with a higher right
- state whether any minor beneficiary or life interest arises (will need 2 admins for trust)
What information is required of the deceased?
- Full name
- D.o.B
- D.o.D
IF WILL;
- domicile
- marital status
- value of foreign property
(if they use two names should include an AKA so assets can be dealt with)
What information is required of the applicant?
- Full name
- Address
- Contact details
Does an IHT form need to be sent to Probate for exempted estates?
No
How does it work if an IHT 400 is required?
- IHT 400 submitted
- HMRC confirm to Probate Registry (IHT 421)
- Probate issue Grant
When might an affidavit be required?
- Not compliant with section 9
- Knowledge and approval
- Date
- Physical condition of the Will
What if the Will is dodgy?
Affidavit is required to be sent to Probate:
- statement of Fact about the will
- Sworn
- Deponent signs
. - address of oath taker
- signed by oath taker
- dated by oath taker
What is included in physical condition of will of afidavits?
- Crossing out (before execution valid, after not valid) affidavit from witness to will
Which affidavit is used to show compliance with s 9?
- affidavit of due execution
Which affidavit is used to show valid alterations?
- affidavit of alterations
Which affidavit is used to show crossings out et. ?
- affidavit of plight and condition
Which affidavit is used for missing documents?
- affidavit of search
What if the original Will is missing?
- Court order required to use a copy
Affidavit required including (where possible):
- evidence the Will / Codicil existed after death
- confirmation that the copy accurately reflects the wishes of the deceased
- confirmation it was correctly executed
