Wills and Estates: applying for grant Flashcards
What is the difference between an executor and an administrator?
Executor appointed by will or codicil (can appoint more than one or a substitute).
Administrator is appointed by court when there is no executor.
Who cannot be an executor?
Anyone can be appointed by mines and incapable will not be granted probate.
How can an executor renunciate office? Including formalities.
Only if not accepted office by taking grant of probate or intermeddling.
formalities
- in writing
- signed by executor
- contains statement that they have not intermeddler
- signed by disinterested witness
What does it mean for an executor to reserve power?
- Means they will not be involved initially, but if circumstances change (ie. another executor cannot/refuses to act) they can apply for grant of probate at later stage
- must re-appy no automatic substitution
Which court grants representation?
Non-Contentious
- Generally in Family Division of High Court (either principle registry in London or a local District Registry)
Contentious
(dispute whether document is admissible to probate or about who is entitled to a grant of representation)
-Then to Chancery Division of High Court if estate is £ 350k
-County Court if estate is below £ 350k
Who can court grants representation to?When might they not grant it to someone?
- generally to the applicant
Exception
Had discretion to make grant to someone other that person with prima facie entitlement
- For example if potential PR is bankrupt or in prison
- Court can also remove an existing PR appoint a substitute
What assets can be dealt with without grant of representation?
Only in non-contentious
- PR may be able to obtain payment of up to £ 5000 by producing death certificate, if it is held in (at institutions discretion):
- National Savings Bank Account
- National Savings Certificates
- Premium Savings Bonds
- Or building societies - Chattels can generally be sold by PR by producing death certificate
What are the types of grants (generally)
- probate
- Letter of Administration with Will Annexed
- Letters of Administration
- Grant de bonis non
When can grant of probate be given?
- Obtained when deceased leaves a valid will (but can only deal with estate after grant)
- Can only be made to executor expressly appointed by will
- If law firm is appointed it is the partners at the date of the will who are entitled to act (subject to contrary intentions)
How many executors can be given grant of probate?
- up to 4
When can grant of Letter of Administration with Will Annexed be given?
Usually made where there is a problem concerning the appointment of the executor in the will. Reasons include
- appointment of executor in will was not correctly drafted;
- will is valid, but deceased did not appoint an executor;
- executor predeceased, renounced, or is unable or unwilling to act
Order of entitlement of Letter of Administration with Will Annexed?
- trustee of residuary estate,
- any other residuary beneficiary (Vested interest preferred to contingent ones)
- PRs of anyone residuary beneficiary (other than life tenants of residuary / so only entitled to income form trust)
- Any other beneficiary or creditor
- PRs of other beneficiary or creditor (other than life tenant)
Can beneficiary who acted as witness to granted Letter of Administration with Will Annexed?
- they lose right to grant under order of entitlement as named beneficiary
- BUT can claim in different capacity (eg. As person entitled to partial intestacy)
How many administrators are required for Letter of Administration with Will Annexed and/or Letter of Administration?
Normally just 1 but
Minimum of 2 administrators is required if:
- There is a minor beneficiary; or
- Life interest under a will.
What is renunciation and clearing off under Letter of Administration with Will Annexed and/or Letter of Administration?
renunciation
- Anyone entitled to apply for grant can renounce
- Not lost by intermeddling in estate
Clearing Off
Person applying for grant must clear off those having better right to the grant:
- Done by completing relevant information in application for grant and explaining why (eg. renounced)
- Must also be done for executor if they have renounced
When is Letters of Administration grant used?
Required when deceased dies intestate (without will or all gifts have failed)
- Gives administrator legal authority to administer estate in accordance with statutory rules of intestacy
Property only vests in administrator on grant NOT on death
Order of entitlement of Letter of Administration?
- Spouse
- Children- not if only step (and issue if predeceased)
- Parent (or their issue if predeceased)
- Full Blood Siblings (and issue if predeceased)
- Half Siblings (and issue if predeceased)
- Grandparents
- Uncles/Aunts whole blood (and issue if predeceased)
- Uncles/Aunts half-blood (and issue if predeceased)
- The Crown
- Creditor of deceased
The PR of any have same right
- However any relative listed has priority over PR’s of surviving spouse who then died before obtaining grant (unless spouse was beneficially entitled to entire estate)
When is a Grant de bonis non given and who does it go to?
Is a second grant made to allow the completion of the administration of the deceased’s estate either:
- following the death of the sole or last surviving PR or
- when previous grant has been revoked
TO who
- granted to the person who would have been entitled had the og PR never taken grant
When is a Grant de bonis non NOT NEEDED?
- if one of several PRs had died
- chain of representation (when last/sole surviving executor dies and that executor’s executor takes a grant (new executor cannot refuse)
What happens if minor or incapable person are named as PR
They cannot take grant
If they are one of several PRS
- grant made to adult PR with power being reserved to minor in case of grant of probate
If sole PR
- limited grant of letters of administration made to minors parents/guardians for use and benefit of minor until they reach 18
What information on lifetime gifts must solicitor for PR finds?
- Life time gifts made up to 7 years before death
When must IHT be paid?
If due IHT must be paid by PR to obtain grant
How can IHT be paid?
- Release of funds from bank directly to HMRC (at their discretion)
- Bank loan (requires undertaking)
- Beneficiary loan
- sale of assets (chattel or quoted shares)
- Insurance policy payment (if payable to estate may ask to have it paid to HMRC)
Exception
- In exceptional circumstances HMRC may allow grant to be obtained on credit if PR can demonstrate it is impossible to pay tax in advance
What must be included in an application for grant (including relevant form)
- Will and codicils – plus two copies (or copy/reconstruction of will and an affidavit to support application) - not needed in intestacy
- Official copy of death certificate
- Relevant inheritance tax form (if estate is not excepted)
- Payment for probate fees
- Supporting documents (eg affidavit evidence)
Relevant form
- PA1P for probate or will annexed
- PA1A if there is no will
What additional evidence may be required in application for probate
Affidavit of due execution
- if no attestation clause in will
- from witness or someone present at signing
Affidavit of deceased full name
- if will no signed with full name
Affidavit of knowledge and approval of wills content]
- if no proper attestation clause
- Where testator was blind, illiterate, frail or there were suspicious circumstances
- Affidavit from witness or other person present at signing
Affidavit of Alterations
- Any unexecuted alterations are presumed to be after executions and inadmissible
- So affidavit needed to prove otherwise
Documents referred to in will
Affidavit of date of execution
Affidavit of plight of condition
- to confirm will is in same plight or condition as when it was found except for the marks
- For example presence of pin or staple marks
What might be required for application for grant if will does not have attestation clause?
Affidavit of due execution from witness or someone at signing
What might be required for application for grant if testator was blind, illiterate, frail or there were suspicious circumstances?
Only if no proper attestation clause
- Affidavit of knowledge and approval of wills content
Can someone prevent a grant of representation?
- Person can lodge caveat with probate registry to prevent issue of a grant of representation
- Might do this if they are beneficiary and believe executor named in will lacks mental capacity to act or that the will is invalid
How long is a Caveat effective?
- Caveats are valid for 6 months
- If matter cannot be resolved in that time it may be decided by a judge
What is the effect of a Citation to take probate?
Used when executor has lost right to renounce probate by intermeddling but has not applied for grant and does not intend to
- Once cited they must proceed with application;
- If not citor can apply for court order allowing executor to be passed over;
- A grant of letter of administration with will annexed can then be applied for
What is the effect of a Citation to Accept or Refuse Grant
Used to clear off a person with a prior right to any type of grant who has NOT applied, and shows person with prior right has no intention of applying for a grant
- If cited person does not take out grant, a grant may be issued to citor
- Alternatively it may be easier and quicker to apply to probate registry for an order passing over an unwilling applicant in favour of someone else
