Wills 7

Question 1

What is a grant of representation?

Answer 1

• A court document authorising the deceased’s PRs to deal with the deceased’s estate and to transfer assets to the beneficiaries. * It is conclusive evidence as to the terms and due execution of any will, or that the deceased died intestate

Question 2

In which court is non-contentious probate business conducted?

Answer 2

Family Division of the High Court- either in the Principal Registry in London or in more local District Probate Registries (more convenient but not required to be used).

Question 3

In which court is contentious probate business conducted?

Answer 3

Chancery Division of the High Court (or County Court if the estate is below £350,000) becomes involved. There may be a dispute about:* whether a document is admissible to probate or * who is entitled to a grant of representation

Question 4

Which laws cover non-contentious probate?

Answer 4

• Non-Contentious Probate Rules (‘NCPR’).* Among other things, the legislation also extends to service and emergency service members’ pensions and civil servants’ salaries and pensions.

Question 5

Is a grant of representation required to distributed money held in National Savings Bank accounts, National Savings Certificates, Premium Savings Bonds, or building societies?

Answer 5

For amounts up to £5,000, it may be possible to obtain payment by producing just a death certificate. * This is at the discretion of the institution concerned; the PRs cannot insist. * Payment can be made to the person appearing to be entitled to the grant or to be beneficially entitled to the relevant asset.

Question 6

What can the PRs sell without a grant of probate?

Answer 6

• Chattels such as furniture, jewellery, clothing, and cars can normally be sold without the PRs having to prove they are entitled to sell such items. * All that is required for these assets is production of the death certificate.

Question 7

What is the role of a solicitor in the context of grants of representation?

Answer 7

• An application for a grant of representation can be made by the PRs via a probate practitioner (note they can also make this application personally). * If the PRs instruct solicitors, it is they who are the solicitors’ clients not the beneficiaries. * Note, acting for a PR does not make the solicitor a PR.

Question 8

What are the 3 types of a grant of representation?

Answer 8

• Probate* Letters of Administration with Will Annexed* Letters of Administration

Question 9

When is a ‘grant of probate’ obtained?

Answer 9

When the deceased leaves a valid will. * It can only be made to executors (up to 4). * Notice of the application is normally given to any executors to whom power is being reserved. * It confirms the authority of executors given in the will.

Question 10

If a firm of solicitors is appointed as executor if a will, who can apply for the grant of probate?

Answer 10

The partners at the date of the will who are entitled to act (subject to contrary intention in the will).

Question 11

What is the maximum number of executors a grant of probate can be issued to?

Answer 11

Four. This might happen where different parts of the estate (e.g. the testator’s business interests and the remainder of their estate) have different executors.

Question 12

To whom is notice of an application for a grant of probate given?

Answer 12

Normally given to any executors to whom power is being reserved

Question 13

When does the testator’s property vest in an executor?

Answer 13

On death

Question 14

What is a grant of probate used for?

Answer 14

• The grant of probate (or at least an office copy) will usually need to be produced as evidence of the executors’ authority to act on behalf of the estate.* It is necessary to legally sell property owned in the estate’s name, access bank accounts, transfer or sell shares etc.

Question 15

When will Letters of Administration with Will Annexed be granted?

Answer 15

Usually when the estate is partially intestate or there is a problem regarding executors, including: * The appointment of the executor in the will was not correctly drafted; * The will is valid, but the deceased did not appoint an executor; or * The executor died before the deceased (including divorce situations), renounced, or is unable (e.g. being a minor or mentally incapable) or unwilling to act. Note, there is an order of entitlement for others to apply to act as executor and the process involves renunciation and clearing off before there will be a grant.

Question 16

What is the order of entitlement for Letters of Administration with Will Annexed?

Answer 16

The NCPR (rule 20) sets out the order of entitlement to a grant in this situation:(1) [This category is not relevant to letters of administration with will annexed; (2) Trustee of the residuary estate; (3) Any other residuary beneficiary. Vested interests are preferred to contingent ones; (4) PRs of anyone in (3), other than a life tenant of the residue; (5) Any other beneficiary or a creditor; and (6) PRs of anyone in (5) other than a life tenant. Essentially, the residuary interest is treated as the principal interest, regardless of its value.

Question 17

T left their house and antique collection to B in their will. They did not leave the residue to anyone. What type of grant of representation must their PRs apply for?

Answer 17

Grant of Representation with Will Annexed.

Question 18

R died, having made a valid will. However, her appointed executor, J, had predeceased R, and R never got around to updating her will accordingly. The will leaves £10,000 to her cousin, V, and the remainder of her estate to her niece, L. Who can apply for a grant of representation?

Answer 18

Because she is a residuary beneficiary, L is the person with primary rights to apply for a grant of letters of adminisration with will annexed.

Question 19

When there is more than one person of equal rank according to the NCPR order of entitlement, which is preferred by the court for a grant of representation?

Answer 19

One who has a vested interest over one who has a contingent interest in the estate

Question 20

K’s will leaves his residuary estate to his two children, J and L, on their reaching age 25. There is no surviving executor and when K dies, J is 28 and L is 22. Who would the court prefer make an application for a grant of representation?

Answer 20

The court would prefer an application by J, as L’s interest is still contingent.

Question 21

When a gift in a will fails due to a beneficiary or their spouse having witnessed the will, can the beneficiary apply for a grant of letters of administration with will annexed?

Answer 21

They lose their right to apply as a named beneficiary in the will. However, they can claim in a different capacity, for example, as a person entitled on partial intestacy.

Question 22

If there is a minor beneficiary or a life interest under a will, how many adminstrators are required?

Answer 22

A minimum of two

Question 23

In T’s will, he left £100,000 in trust for his two children, aged 12 and 10. How many administrators must apply for a grant of representation?

Answer 23

Two administrators as there are minor beneficiaries

Question 24

W dies, leaving his estate to his wife O for life, remainder to his three adult children. No executor is appointed. How many administrators are required to apply for a grant of representation?

Answer 24

Two administrators are required due to O’s life interest.

Question 25

Can a person entitled to apply for letters of administration renounce the right?

Answer 25

Yes. Note, in contrast to executors, the right to renounce is not lost by intermeddling in the estate.

Question 26

What does ‘clearing off’ mean in the context of applying for a grant of letters of administration with will annexed?

Answer 26

• The person applying for a grant must ‘clear off’ (i.e. account for) those having a better right to the grant. * Clearing off is achieved through completing the relevant information in the application for a grant. * People in the same category as the person applying do not need to be cleared off. * If more than one person needs to apply, it may be necessary to seek the additional person from a class of lower priority.

Question 27

The executors of A’s estate have renounced probate. The residue beneficiary, R, decides to apply for a grant of representation. What will she need to make sure to do in her application?

Answer 27

Clear off the named executors by confirming that they have renounced.

Question 28

The executors of K’s estate have renounced probate. The residue of the estate is left to two beneficiaries, M and P, in equal amounts. Is clearing off required by the beneficiary who applies for a grant of representation?

Answer 28

No

Question 29

When are letters of administration granted?

Answer 29

Letters of administration are required when the deceased dies intestate or when there is a will but all the gifts have failed. * This grant gives the named personal representatives (‘administrators’) the legal authority to administer the estate in accordance with the statutory rules of intestacy. * There is no authority from the date of death. Only on issue of the grant does the deceased’s property vest in the administrator (in the interim it vests in the Public Trustee). * An administrator (with or without the will annexed) has very limited powers before a grant is made.

Question 30

If a person dies intestate/all gifts in their will fail, who does their property vest in?

Answer 30

The Public Trustee

Question 31

What is the order of entitlement to apply for letters of administration?

Answer 31

(1) Surviving spouse (or civil partner) (2) Children (legitimate/illegitimate/adopted but not step) of the deceased and the issue of any predeceased child(3) Deceased’s parents(4) Deceased’s brothers and sisters of the whole blood (and issue of predeceased)(5) Deceased’s brothers and sisters of the half blood (and issue of predeceased)(6) Grandparents(7) Uncles and aunts of the whole blood (and issue of predeceased)(8) Uncles and aunts of the half blood (and issue of predeceased)(9) The Crown and (10) A creditor of the deceased. The PRs of a person have the same right to a grant as the person whom they represent. However, the relatives listed above (children through uncles and aunts of the half blood) have priority over the PRs of a surviving spouse who has died before obtaining a grant-unless the spouse was beneficially entitled to the entire estate.

Question 32

How many administrators will be required if there is a minor beneficiary or a life interest under a will?

Answer 32

A minimum of two

Question 33

What is the maximum number of administrators under a grant of letters?

Answer 33

Four

Question 34

Can power be reserved in a grant of letters?

Answer 34

No

Question 35

If a person is entitled to apply for a grant of letters, can they be forced to?

Answer 35

No, anyone entitled to apply for a grant can renounce their right.

Question 36

Do clearing off rules apply to applications for letters of administration?

Answer 36

Yes. Those having a better right to a grant must be cleared off by completing the relevant information in the application for a grant, but those in the same category do not need to be.

Question 37

What is a grant of administration de bonis non?

Answer 37

A second grant made to allow the completion of the administration of the deceased’s estate following the death of the sole or last surviving PR or when a previous grant has been revoked. * It will be granted to the person who would have been entitled had the original PR never taken the grant. * No such second grant is needed if one of several PRs has died or if a ‘chain of representation’ exists. A chain of representation happens when a sole or last surviving executor dies and that executor’s executor takes a grant of probate.

Question 38

When a PR dies, when is a grant de bonis non not needed?

Answer 38

No such second grant is needed if:* one of several PRs has died or * if a ‘chain of representation’ exists. A chain of representation happens when a sole or last surviving executor dies and that executor’s executor takes a grant of probate.

Question 39

Can there be a chain of representation if the PR who died is an administrator?

Answer 39

No, it only applies where an executor dies and they have appointed their own executor.

Question 40

F dies appointing E to be his executor. E proves the will but dies before completing the administration of F’s estate. E appointed P to be her executor. Do letters of administration need to be applied for in order to administer F’s estate?

Answer 40

No, by proving E’s will, P automatically becomes the executor by representation of F and is able to complete the administration of F’s estate. It is not permissible for P to refuse to be executor by representation of F’s estate. Note that if F had died intestate, there would have been no chain of representation in the event of E’s death as an administrator of F’s estate. A grant de bonis non would be needed to complete the administration of F’s estate.

Question 41

Can an executor in a chain of adminstration situation refuse to act?

Answer 41

No

Question 42

E is the executor of W’s estate. While E is in the process of administering the estate, he dies. E has a valid will in which he names C as his executor. Do letters of administration need to be applied for in order to administer W’s estate?

Answer 42

When C applies for the grant of probate for E’s estate, he automatically becomes the executor by representation of W. This is a chain of representation. C is then able to complete the administration of William’s estate.

Question 43

E is the executor of W’s estate. While E is in the process of administering the estate, he dies. E died without a valid will. His niece is his closest relative, and she applies for a grant of letters of administration. Do letters of administration need to be applied for in order to administer W’s estate?

Answer 43

Yes. Because the niece is an administrator, not an executor, there is no chain of representation, and she doesn’t automatically become the executor of William’s estate. A person entitled to apply for a grant for W’s estate- likely a relative of W’s- would have to apply to the court for a grant of administration de bonis non to finish the administration of W’s estate.

Question 44

Who is not permitted to take a grant of representation?

Answer 44

Minors and entally incapacitated people. * If they are one of several executors or potential administrators, a grant is made to the adult PRs with power being reserved to the minor/mentally incapacited person in the case of a grant of probate. * If the minor/mentally incapacited person is the only or last surviving PR, a limited grant of letters of administration is made to their parent or guardian for the use and benefit of the minor until age 18/mentally incapacited person until they recover.

Question 45

What happens if the only surviving PR is a minor?

Answer 45

A limited grant of letters of administration is made to their parent or guardian for the use and benefit of the minor until age 18.

Question 46

What are the powers of the court in relation to grants of representation?

Answer 46

The court:* has discretion to make a grant to someone other than the person who is prima face entitled under the NCPR e.g. if a potential PR is bankrupt or in prison* can also remove an existing PR and appoint a substitute