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SQE 1 (mine) > Wills 4: Obtaining the Grant > Flashcards

Wills 4: Obtaining the Grant Flashcards

1
Q

What are the types of grant?

A
  1. Valid will with executors: Executors will obtain a grant of probate
  2. Valid will but none able/willing to act as executor: Administrators will obtain grant of letters of administration with will annexed
  3. No valid will=administrators will obtain grant of (simple) letters of administration
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2
Q

What form is used to obtain a grant of probate

A

PA1P

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3
Q

Grant of probate: what should be sent to HMCTS?

A

-original will/codicils
-form PA1P with dates
-info on foreign wills/marriage (if married after making will) in case it revokes will

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4
Q

Grant of probate: who is entitled to grant?

A

Executors appointed by valid will

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5
Q

Grant of probate: Is the executor’s entitlement to grant affected if will fails to dispose of prop?

A

no

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6
Q

Grant of probate: Does the executor’s power come from the grant?

A

No, executors authority from will, grant confirms/provides evidence of executors title to deceased’s estate and validity of contents of will

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7
Q

Grant of probate: what is the min/max number of executors?

A

Min: 1
Max: no limit but probate will be granted to max 4 for same prop, with power reserved for others to take out grant if future vacancy arises

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8
Q

Can you obtain a grant of probate for a limited part of the estate?

A

No

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9
Q

Grant of probate: what happens if an executor lacks capacity?

A

-Cant apply for grant

-If theyre only 1 person=person with their power of attorney takes grant

-Minor: probate granted to adults with power reserved for minor (can apply for grant of double probate once turn 18
If minor only executor-someone takes on behalf, grant of letters of admin with will annexed for use/benefit of minor will be made until minor turns 18

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10
Q

What happens if an executor renounces their right?

A

They cease and admin of estate proceeds as if executor never appointed

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11
Q

When CANT an executor renounce their right?

A

If executor intermeddled (do something a PR might do) as deemed to have accepted office

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12
Q

How does an executor rennounce?

A

Sign form PA15, and file with HMCTS

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13
Q

If an executor renounces their right, and is also a trustee, will they cease being a trustee?

A

No

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14
Q

Grant of letters of administration with will annexed: where do administrators gain their power from?

A

The grant

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15
Q

Grant of letters of administration with will annexed: What is the order of entitlement to grant?

A
  1. Executor
  2. Trustee of residue
  3. Beneficiary of residue
  4. PR of residuary beneficiary
  5. Any other legatee/devisee/creditor of deceased
  6. PR of any other legatee/devise/creditor of deceased
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16
Q

Grant of letters of administration with will annexed: is a person with a vested or contingent interest preferred?

A

Vested (if in same category of someone with contingent interest)

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17
Q

Grant of letters of administration with will annexed: Do administrators loose their right to renounce via intermeddling?

A

No

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18
Q

Grant of letters of administration with will annexed: Can minors act as administrators?

A

-No,other ppl entitled in same category as minor will apply
-If no other ppl, minors parents/guardians may apply for grant for minors use and benefit on their behalf

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19
Q

Grant of letters of administration with will annexed: Min/max number of administrators

A

Min: 2 Where life interest OR prop passes to minor

Max: grant wont issue to more than 4 in relation to same property

Where 2 or more entitled in same degree, any of them can apply without notice to others

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20
Q

Grant of letters of administration with will annexed: How does an administrator renounce

A

Same as executor

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21
Q

Grant of (simple) letters of administration: What form is used to apply?

A

PA1A

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22
Q

Grant of (simple) letters of administration: What is the order of entitlement to grant?

A

Same as entitlement on intestacy:
1. issue on the statutory trusts
2. parents equally
3. whole siblings on the statutory trusts
4. half siblings on the statutory trusts
5. grandparents equally
6. whole uncles and aunts on the statutory trusts
7. half uncles and aunts on the statutory trusts
8. Treasury Solicitor of claims bona vacantia on behalf of crown
9. creditor of deceased or any person who may have a beneficial interest in the event of an accretion therto (even if don’t have interest now)

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23
Q

Grant of (simple) letters of administration: what is clearing off?

A

Proving no relatives in higher categories

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24
Q

Grant of (simple) letters of administration: min/max numbers of administrators?

A

-Min 2 where minority interest though prop being held for minors on the statutory trusts
-Max 4 (not possible to have power reserved if more than 4)

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25
Q

What should be checked to ensure will admissible?

A

-Its the last will
-Not been validly revoked
-Duly executed in accordance with s9 WA 1837
-Contains attestation clause to raise presumption of due execution

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26
Q

What is the grant not needed for ?

A

1) Assets passing to PRs without grant
-payments under £5 to people appearing beneficially entitled without grant at discretion of institutions concerned
-Chattels
-Cash found in deceased possession
2) Assets not passing under will/intestacy (so not vesting in PRs)
-joint property
-insurance policies written in trust
-pension benefits

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27
Q

Types of estates for assessing IHT liability and effect on IHT

A

-Excepted estate-NO IHT (deaths on/after 1 Jan 2022)
-Non excepted estate-PAY IHT

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28
Q

Procedure for Expected estates

A

Provide no info to HMRC but inc. following in grant:
1. deceased’s name/DoB
2. decleration that estate is expected and whether using NRB of predeceased spouse
3. The following IHT estate values:
-gross value of estate for IHT +specified transfers
-Net value of estate for IHT LESS allowable reliefs
-Net qualifying value of estate

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29
Q

How long does HMCTS have to pass grant info to HMRC?

A

1mo

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30
Q

What are the 3 categories of excepted estates?

A
  1. small estates (gross under NRB)
  2. exempt estates (bulk of estate attracts spouse/charity exemption, + under £3mill + net after liabilities under NRB)
  3. non-domiciled estates
31
Q

Expected estates: what is a ‘non domiciled estate’

A

Where deceased never domiciled or treated as domiciled in the UK and owned limited assets in UK

32
Q

Expected estates: what is a ‘small estate’?

A
  1. D died domociled in UK
  2. value is prop passing under will/intestacy/nomination of asset taking effect on death /single settlement D was entitled to an interest in possession/survivorship
  3. less than £250k was settled prop
  4. less than £100k is outside UK
  5. No chargeable transfers in 7y before death other than specified transfers where the value (ignoring agri/business relief) didn’t exceed £250k
  6. gross value of estate +specified transfers + specified exempt transfers don’t exceed nil band rate (inc spouses)
33
Q

For a ‘small estate’ what is a ‘specified transfer’?

A

chargeable transfers of cash, personal chattels, tangible moveable prop, quoted shares/securities, interest in/over land made in 7y prior death

34
Q

For a ‘small estate’ what is a ‘specified exempt transfer’?

A

transfers of value made in 7y prior to death which are exempt under following exemptions:
◊ Transfers between spouses
◊ Gifts to charities
◊ Gifts to political parties
◊ Gifts to housing associations
◊ Maintenance funds for historic buildings
◊ Employee trusts

35
Q

Expected estates: what is a ‘exempt estate’?

A

Where bulk of estate attracts spouse/charity exemption:

  1. D died domociled in UK
  2. value is prop passing under will/intestacy/nomination of asset taking effect on death /single settlement D was entitled to an interest in possession/survivorship
  3. less than £250k is chargeable trust prop and total amout of trust prop is less than £1mill
  4. less than £100k is outside UK
  5. No chargeable transfers in 7y before death other than specified transfers where the value (ignoring agri/business relief) didn’t exceed £250k
  6. gross value of estate +specified transfers + specified exempt transfers doesnt exceed £3mill
  7. theres prop left after deductions to spouse/charity
  8. this value left + specified transfers + specified exempt transfers didnt exceed NRB (inc spouses)
36
Q

How do you pay IHT for non-expected estates?

A

-Send IHT400 to HMRC (OR IHT401 if domiciled outside UK)
- HMRC will give unique code to inc in grant app

37
Q

What is IHT400

A

-an inventory of assets deceased beneficially entitled to and their liability
- Form for claiming reliefs and exemptions
-Form for calculating IHT

38
Q

timeframe for sending IHT400

A

-12mo of end of month dearth occurred (but PRs aim for 6m to comply with IHT interest time limits)

-HMRC has 60d from issue of grant of representation to ask for additional info (or estate receives automatic clearance)

-If estate initially seems to be expected and turns out not to be, PRs must submit within 6mo discovery

39
Q

Time limtis for paying IHT

A

-Non instalment option property: 6mo of end of month death occurred BUT non instalment option must be paid before the grant

Instalment option property: - 1st due 6mo of end of month of death then other 9 at annual intervals

40
Q

How can IHT be funded if its due before the grant?

A

-Direct payment scheme (deceased’s banks/BS pays directly to HMRC)

-Life assurance

-Assets realisable without production of grant (max £5k and at the discretion of institution)

-Loans from beneficiaries

-Bank borrowing

-National Savings and Gov stock

-Heritage prop in lieu of tax (Sec of state must agree and item national/scientific/historic/artistic importance)

-Obtaining grant on credit

41
Q

When must the grant application be made online and what are the exceptions?

A

Online mandatory for legal professionals EXCEPT for a grant:
□ of administration (inc with will annexed)
□ Second grant of probate for same estate
□ Where person entitle forfeited right to apply eg killed deceased
□ foreign will
□ Accompanied by app to prove a copy of the will
□ Where all those entailed are dead

42
Q

How do you obtain letters of administration (with/without will annexed)?

A

By post using:
Form PA1P to HMCTS-if will annexed
Form PA1A to HMCTs- no will
OR online IF:
-only 1 applicant
-only 1 person entitled to estate

43
Q

What should be included on the application form for the grant?

A

-identify applicants
-identify deceased
-if theres settled land vested in deceased
-if needed, power of attorney +medical evidence
-deceased’s assets (IHT400 completed and unique HMRC code OR gross assets, specified transfers and specified exempt transfers in 7y)
-legal statements of truth
-sign (+legal rep sign)

44
Q

What additional docs should be sent with the grant application?

A

Death certificate
Original will and codicil
HMRC forms
Evidence of validity of will

45
Q

Evidence of validity: when may you need evidence of due execution/capacity and what evidence would be needed?

A

-if no valid attestation clause:
=evidence from attesting witness OR Affidavit of dr (capacity)

46
Q

Evidence of validity: when may you need evidence of knowledge and approval and what evidence would be needed?

A

If signed by someone other than testator/attestation clause not suitable adapted
=Affidavit/witness statement made by someone who can speak to the facts (normally attesting witness)

47
Q

Evidence of validity: when may you need evidence of remote witnessing and what evidence would be needed?

A

where attestation clause not amended
=Affidavit/witness statement from witness/anyone present

48
Q

Evidence of validity: when may you need evidence of plight and condition and what evidence would be needed?

A

Where : Will altered OR obvious mark suggesting another doc was attached OR appearance of attempted revocation

=affidavit/witness statement of plight and condition made by some person having knowledge of the facts

49
Q

If a will is lost, what is presumed and what can be done?

A

rebuttably presumed to have been destroyed by testator with intention to revoke
Probate may be obtained of copy, app to register should be supported by affidavit or witness statement from applicant for grant of probate

50
Q

What is the fee for the grant application and how is it paid

A

£273 if estate exceeds £5k
£0 if estate under £5k
£1.50 for extra copies (Receive one free)

Paper apps-cheque
Online-firm must open HMCTS Payment by Account, for automatic payment

51
Q

How can the issue of a grant be prevented

A

If have just cause, can lodge caveat at HMCTS, no grant can be issued until caveat is removed/ceases to be effective
How: form PA8A

52
Q

How long does a caveat last

A

6 months

53
Q

How can the issue of a grant be compelled

A

Citation

54
Q

What are the types of citation?

A
  1. Citation to take probate: where executor intermeddled but shows no sign of applying for grant, once issued must proceed with grant app or citor can apply to court allowing executor to be passed over
  2. Citation to propound will (authenticate will by obtaining grant of probate): where person realises there may be a will that would diminish their entitlement under earlier will/intestacy =Can cite executors in later will/ppl interested under it to propound it if don’t, can apply to court fort order for grant as if will invalid
  3. Citation to accept or refuse a grant: Standard way to clear off person with prior right to grant who shows no intention of applying/dithering
55
Q

What is passing over

A

If person unwilling to act as executor, preferable to apply to court under s116 Senior Courts Act 1981 for order passing over that person in favour of someone else

56
Q

At what point to beneficiaries gain an equitable interest and what right do they have before this?

A

Bs don’t have equitable interest until PRs transfer them the prop but DO have the right to compel due administration of estate

57
Q

What are PR responsibilities with regards to accounts and info?

A

-keep accurate records of receipts payments
-Right before final distribution of estate, PRs will prep estate accounts

58
Q

What are beneficiaries rights with regards to accounts and info?

A

-inspect records
-if unclear/inaccurate, cam apply for court order compelling PRS to provide inventory and accounts
-No automatic entitlement to disclosure of reasons for PRs decisions and deliberations on discretionary matter BUT can apply to court

59
Q

Who can bring administrative proceedings and what are the 2 categories?

A

Can be bought by anyone interested in estate

  1. Apps limited to particular issue (eg performance of duty/meaning of words)
  2. Apps for general administration matter-under general administration order, PRs cant exercise power without courts permission
60
Q

What is the executors year?

A

PRs don’t have to distribute estate until 1y from date of death (applies to administrators too)

61
Q

What actions can be bought against PRs for breach of duty?

A
  1. Breach of fiduciary duty
  2. Devastavit (wasting of assets/causing loss to the estate)
62
Q

What do Fiduciaries have duty to do?

A

□ Avoid conflict of interest between duties and personal interest
□ Account to estate for unauthorised profit

63
Q

How can a PRs profits be authorised?

A

Provision in deceased’s will
Court order
Consent of all Bs if all over 18, agree, of sound mind

64
Q

What can can beneficiaries do for transactions for PR to buy prop from estate

A

Voidable by beneficiaries within a reasonable time

65
Q

What is the effect on a PR of a sucessful devastavit claim?

A

will have to pay Bs from their own resources

66
Q

What can a devastavit claim be based on?

A

Misuse of assets
Maladministration
Negligence

67
Q

Defences to a devastavit claim

A

-Exclusion clause in will
-Aquiecence of Bs- (adult B with full knowledge of facts consented)
-Protection against unknown/missing claimants
-Limitation -12y from date on which right to receive estate accrued (BUT NO time limit for: fraudulent breaches of duty/PR takes estate prop for own use)

68
Q

What is the time limit for a beneficiary following and tracing assets and what claim can they bring?

A

12 years

1.proprietary claim to assets (or traceable proceeds) from recipient unless theyre a bona fie purchaser for value without notice
2. personal claim for compensation against recipient of assets wrongly paid by PRs, provided all remedies against PRs have been exhausted

69
Q

How can PRs be removed?

A

-Once got grant, cant resign unless court removes
- App to court can be made by PR or B
-Court has discretion to remove/substitute but must ensure at least 1 PR remaining
-Main factor: welfare of beneficiaries

70
Q

What are the rights of creditors against PRs?

A

Causes of action and performance of contracts against deceased continue with PRs
BUT:
□ PRs only liable to extent of deceased’s assets
□ Limitation period 6y

○ PRs may be personally liable for devastavit (follow procedure in s27 TA 1925 to provide a defence against creditors of whos existence PR wasn’t aware of at time of distribution)

71
Q

What is the similarities between PRs and trustees?

A

Fiduciaries
Duties/powers in TA 2000 apply

72
Q

Differences between PRs and trustees?

A

Trustees can retire and PRs cant without court order
Limitation periods different

73
Q

How/when do PRs transition into trustees (if also appointed trustee)?

A

Real estate: PRs execute assent to themselves as trustee
Personality: PRs become trustees when they’ve finished administration of estate by paying debts and distributing assets

SQE 1 (mine) (30 decks)

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