Wills and Estate Administration - Personal Representatives & Grants of Representation

Question 1

Personal Representatives

Answer 1

Settle a deceased person’s estate and distribute assets to beneficiaries

Executor if PR provided for in the will

Administrator if there is no will or there is a will but no named executor is able or prepared to act

Question 2

Renouncing Executorship

Answer 2

As long as they have not already been granted probate or intermeddled in estate

Named executor must do so in writing and prepare a statement confirming they have not intermeddled

Document must also be signed by a witness with no interest in estate

Renunciation must be filed at HMCTS Probate Service

Once renounced an executor cannot reclaim unless court allows them to do so

Does not affect any trustee position

Question 3

Reserving power

Answer 3

Executor not involved for now but if an executor falls ill, dies or changes their mind they can apply for a grant of probate at a later stage

Question 4

Grants of Representation

Answer 4

Legal document that confirms a person’s ability to administer an estate

Question 5

Types of grants of representation

Answer 5

1. Probate
2. Letters of administration with will annexed
3. Letters of administration

Question 6

Probate

Answer 6

• Used when deceased died with valid will that names one or more executors who are willing and able to act (if a firm of solicitors it is the partners at the date of the will)
• Only one executor needed but up to 4 can apply (different parts of the estate can have different executors)
• Grant is needed to legally sell property, access bank accounts and transfer and sell shares, for example
• Covers property passing under will and any part of the will passing on partial intestacy (partial intestacy arises if will does not effectively dispose of residue)

Question 7

Grants of Letters of Administration with Will Annexed

Answer 7

Required if there is a will but no executor able and willing to act. This may arise due to:

• Appointment of executor in will not correctly drafted or will fails to apoint executor
• Executor died before deceased, renounced or not able to act
• Appointment was testator’s spouse and fails due to divorce

Who can apply for a grant? Non-contentious probate rules specify order of entitlement to a grant, you go down the classes of categories in list until you find a person in the class

1. Exectors
2. Trustee of residuary estate
3. Residuary beneficiary or anyone entitled to residue

**Multiple people in a particular class? **

1. Court prefers beneficiary with a vested interest rather than a contingent interest - vested interests do not depend on condition occuring
2. If multiple people in the same class have an equal entitlement an application must account for anyone with a better right to grant (called clearing off) - people in the same category as the person applying do not need to be cleared off

Two administrators required if there is a life interest or minor beneficiary

Anyone entitled to apply for a grant may renounce but this right is not lost by intermeddling in estate (in contrast to executors)

Any beneficiary who has witnessed the will loses their right to a grant under the above list but can claim in a different capacity

Question 8

Grants of Letters of Administration

Answer 8

Deceased died without a valid will and grant gives named PRs the legal authority to administer the estate in accordance with intestacy rules

Property vests in PR on issue of grant not on date of death

Order of entitlement broadly follows intestacy rules:

• Surviving spouse
• Children of deceased (exc. step-children unless adopted by deceased)
• Parents
• Etc

Two administrators required if there is a minor beneficiary

Those having a better right to a grant must be cleared off

If more than one person in the same class entitled to apply for a grant any person may apply without giving notice to the others

Anyone entitled to a grant may renounce their right

Can only be issued to a maximum to 4 administrators and no power can be reserved

Question 9

Grant de bonis non

Answer 9

• Second grant needed when last PR dies or previous grant revoked - will be granted to the person who would have been entitled had the original PR never taken the grant
• No grant necessary where chain of representation exists: executor dies and executor’s executor takes grant of probate

Question 10

Minors cannot take a grant

Answer 10

However, if minor is one of several executors power may be reserved to the minor while grant of probate granted to other adult executors

If minor is the only or last surviving PR a limited grant of letters of administration is made to the minor’s parent or guardian

Similar rules apply when a PR lacks capacity

Question 11

Courts with jurisdiction

Answer 11

County Court if estate is below £30,000

High Court Chancery Division

Question 12

Chattels and other assets

Answer 12

Chattels such as furniture, jewellery, clothing and cars can normally be sold without a grant - death certificate is all that is normally required

Question 13

Potential PR bankrupt or in prison

Answer 13

• Court has the discretion to refuse to issue them a grant
• The court can also remove an existing PR and appoint a substitute