Wills 9

Question 1

Who may make online applications for a grant of application be made?

Answer 1

• Personal applications by executors when there is a will or in limited intestacy situations.* Probate professionals. They must use a practitioner version of the relevant form (PA1) with effect from 18 May 2020 (previously could use paper application)If registering online, originals of documents still need to be physically sent to the Probate Registry.

Question 2

What 5 things must be included with an application?

Answer 2

• The will (and codicils) - plus two copies (plus foreign wills, if relevant). Note, if it has been accidentally destroyed or lost, probate may be obtained of a copy of the will or a reconstruction of it. An affidavit will be required to support the application * An official copy of the death certificate* Further supporting documents e.g., affidavit evidence, if required* The relevant IHT form if applicable * Payment for probate fees.

Question 3

If the application for a grant of representation is approved, what happens next?

Answer 3

The grant is:* prepared and sealed by the court. * sent, together with the number of office copies requested on application, to the ‘extracting solicitor’ (that is, the solicitor who is acting for the PRs) usually within 14 days of the application being lodged.

Question 4

What is a Form IHT421?

Answer 4

The relevant IHT form for receipted probate summary from HMRC

Question 5

What are the two types of probate application forms?

Answer 5

• Form PA1P is used when the application is for probate or administration with will annexed. * Form PA1A is used when there is no will and it is therefore an administration case.

Question 6

What are the sections of a Form PA1P?

Answer 6

ChecklistSection A - Details of the Grant Applicants* Legal Representative* Verification of Applicant’s IdentitySection B* Details of the Deceased* Will and Codicils* Details of Relatives of Deceased* Applying as Attorney* Foreign Domicile* Inheritance Tax Summary (not needed if summary was completed online - gross and net estate and IHT identifier are inserted instead)Legal Statement

Question 7

If a practitioner is acting for the applicant, what key duty do they have in relation to “Section A - Details of the Grant Applicants” section of the application for grant of representation form?

Answer 7

• Verify the identification of the applicant against a passport or driving license, and the name on the application must be the same as that document. * If e.g. the will does not record the applicant’s full name, then this must be stated on the form.

Question 8

What details are included in “Details of the Deceased” in Section B of the application for a grant of representation form?

Answer 8

• Name, address, and dates of death and birth. * Any assets held in any different names that the deceased may have been known by, even if the alternate name is just a different spelling or omission of a middle name. The grant will need to include these alternative names. * Domicile and marital status of the deceased.

Question 9

What details are included in “WIlls and Codicils” in Section B of the application for a grant of representation form?

Answer 9

• Details of the will and of any codicils. * Details of all executors named in the will who are not applying for the grant and an explanation as to why not. The applicants are required to specify that notice of the application has been given to any executor with power reserved. * Specify whether the will has been taken apart for copying purposes and confirm that the will has not been added to or had any pages removed. * The practitoner version asks if there are any features in the will that the practitioner wishes to highlight.

Question 10

What is included in the Legal Statement at the end of the application for a grant of representation form?

Answer 10

It is completed, signed, and dated by the applicants listed in section A, setion 1 or the probate practitioner, confirming the applicants will:(1) deal with the estate in accordance with the law, (2) keep account of the estate and distributions, and (3), if requested, provide the Probate Registry with estate accounts and return the grant. The applicants also confirm that they understand their legal obligations for making truthful and honest returns.

Question 11

How does the Form PA1A differ from the form PA1P?

Answer 11

• It does not contain a section on wills. * In the section requiring details of the deceased’s relatives, more information must be given because this information may be required to determine who is entitled to take out the grant. * The applicant must have a beneficial interest in the estate as a consequence of the intestacy rules, and they must state their relationship to the deceased and whether they are solely entitled to the estate or one of the persons entitled to a share of the estate

Question 12

A dies intestate. She never married and is survived by her father and brother. Who can apply for a grant of representation?

Answer 12

Only A’s father can apply for the grant because he is solely entitled to A’s estate under intestacy.

Question 13

What 7 pieces of further evidence may be required by the court before issuing a grant of representation?

Answer 13

• Evidence of due execution of the will if no valid attestation clause e.g. witness affidavit evidence * Affidavit confirming the deceased’s full name and explaining that they signed the will in a shorter name* Evidence of knowledge and approval of the will’s contents if no valid attestation clause e.g. witness affidavit evidence * Affidavit to confirm whether any alteration existed at the date of execution* Documents referred to in the will * Affidavit from a witness if there is uncertainty about the date the will was executed* If there was an attempted revocation e.g. suggested by pin/staple marks, an affidavit of ‘plight and condition’ may be necessary

Question 14

What is an affidavit of ‘plight and condition’

Answer 14

• This is required in the situation where the presence of pin or stable marks suggests revocation by a later will or codicil. * The affidavit will confirm that the will is in the same plight and condition as when it was found after the testator’s death except for the marks or alterations that can be seen and explained.

Question 15

When will a ‘caveat’ be lodged with the Probate Registry

Answer 15

To prevent the issue of a grant of representation. * The “caveator’ might do this if they are a beneficiary and they believe that the executor named in the will lacks mental capacity to act or that the will is invalid. * Caveats are valid for up to six months. * If the matter cannot be resolved, it may end up with a judge determining the issue.

Question 16

When is a citation to take probate used?

Answer 16

When:* an executor has lost their right to renounce probate by intermeddling in the estate * but has not applied for a grant and * does not intend to do so. Once cited by the Probate Registry, the executor must proceed with an application for a grant of probate. If they still refuse to act, the citor can apply for a court order allowing the executor to be passed over. A grant of letters of administration with will annexed can then be applied for.

Question 17

A testator’s will names E as the executor. E doesn’t want to act as executor, but he intermeddles in the estate by informing the testator’s bank and creditors that the testator has died. P, a child of the testator, finds out that E isn’t planning to apply for a grant of probate. What option is available to P?

Answer 17

She can ask the court to cite E. If E still doesn’t do anything after being cited, P can apply for an order allowing E to be passed over. Once that order is granted, P can apply for a grant of letters of administration with will annexed.

Question 18

When is a citation to accept or refuse a grant used?

Answer 18

• To clear off a person with a prior right to any type of grant who has not applied, and shows no intention of applying, for a grant. If the cited person does not take out a grant, a grant may be issued to the citor. * Alternatively, it may be easier and quicker to apply to the Probate Registry for an order passing over an unwilling applicant in favour of someone else.

Question 19

A person dies without a will. There’s no surviving spouse, but the deceased is survived by her son and her mother. According to the order of entitlement, the son has a superior right to a grant of letters of administration. However, the son has no intention to apply for a grant. Can the mother do anything about this?

Answer 19

The deceased’s mother can ask the court to cite the son to accept or refuse a grant. If after being cited the son refuses to apply for a grant, the mother can apply for a grant herself.