5 - Administration: Grants of Representation & Application for a Grant Flashcards
1
Q
What is administration and the key terminology used in the topic of administration?
A
When a person dies the legal process for managing the distribution of their estate, paying debts, taxes and other estate expenses, and making payments to beneficiaries is referred to as administration.
The people permitted by law to administer a deceased’s estate are the personal representatives (‘PRs’)
- A PR appointed by a person’s will is called an executor
- A PR appointed by operation of statute is called an administrator.
- You will also come across the female forms ‘executrix’ / ‘administratrix’.
The court order confirming the authority of the PRs to act (in particular, their right to collect in the deceased’s assets and distribute the estate) is the grant of representation (the ‘grant’)
2
Q
What is the grant of representation?
A
The grant of representation is an order of the High Court that confirms:
- The authority of personal representatives (PRs) to act, specifically their right to collect the deceased’s assets and distribute the estate.
- The validity of the deceased’s will, or if the deceased died intestate (without a will).
PRs generally cannot collect or realise assets in the estate without producing the appropriate grant.
The power conferred by the grant is limited to the assets passing under the will or intestacy (the succession estate).
PRs may offer advice on practical steps regarding assets passing outside the succession estate, like joint tenant property, but have no legal authority to deal with these assets.
3
Q
Where do executors and administrators get their power from, and why is a grant needed?
A
Executors (appointed by a will) derive their authority from the will, so they may act from the moment of death. The grant confirms their authority.
Administrators (appointed by operation of statute) derive their authority from the grant itself. They cannot act until the grant is issued.
While executors have a legal right to administer an estate without a grant, it is usually impractical, as most asset holders will not release funds without sight of the grant.
Obtaining the grant of representation is a priority for all PRs and should be done as quickly as possible.
4
Q
What are the four key steps of administration
A
-
The role of a PR, their powers, duties, and liabilities:
This involves understanding the role of the PR, the powers they have, their legal and fiduciary duties, their personal liabilities, and any protection they may be afforded. -
Grants of representation:
This covers the nature of the grant, why it is needed, the different types of grant, and the assets that may be distributed without a grant. -
Applying for a grant:
Steps taken after death: arrange the funeral, register the death and obtain death certificates, lock up the assets (notify insurers, DVLA etc), look for the will which will be key in determining who will be PR and beneficiaries, options for those who do not wish to act, Non-Contentious Probate Rules, arrange valuation of the property, notify banks/financial institutions, prepare schedule of assets & liabilities, prepare schedule of lifetime transfers, collect assets without a grant, reporting to HMRC, paying Inheritance Tax (IHT), and completing the application process through an IHT 400. After this, apply for the correct grant. -
Post-grant practice:
This includes collecting the deceased’s assets, paying debts and estate tax liabilities, addressing beneficiary tax liabilities, making distributions, and preparing Estate Accounts.
5
Q
Provide a summary overview of what administration is.
A
Estate administration is the process of collecting in the deceased’s assets, paying debts and liabilities and distributing the remaining assets in accordance with the deceased’s will or the intestacy rules.
Many of the steps in an administration can be carried out simultaneously, although in this module we look at each particular step in turn.
The PRs carry out the administration process. A PR appointed by will is an executor and a PR appointed by statute is an administrator.
The grant of representation, commonly referred to as the grant, is a court order conferring authority on the PRs to carry out the administration.
The grant establishes the PRs right to deal with the succession estate assets.
6
Q
What is a grant of representation?
A
A grant of representation is a court order that confirms the authority of those named in it to administer the estate of the deceased.
It is a generic term covering any type of grant of representation.
The grant provides the PRs (Personal Representatives) with the legal right to collect in the deceased’s assets, pay debts and distribute the estate to the beneficiaries.
A grant is required for estates where certain assets cannot be dealt with without legal authority.
7
Q
What are the three main types of grant?
A
The three main types of grant of representation are:
- Grant of probate – issued when the deceased left a valid will and appointed executors.
- Grant of letters of administration (with will) – issued where there is a valid will but no executors are willing or able to act.
- Grant of letters of administration – issued when the deceased died intestate (without a valid will).
8
Q
What key elements does the grant of representation confirm?
A
The grant of representation confirms the following key elements:
- Identity and date of death of the deceased.
- That the deceased left a valid will (if applicable).
- The identity of the executors appointed by the will (if applicable).
- The value of the estate to which the grant applies (the succession estate).
- An official signature, stamp, and holographic seal are added to the grant.
9
Q
When is a grant of representation required?
A
A grant is required when a person dies, and the estate includes assets that cannot be dealt with without legal authority.
PRs must provide evidence of their appointment to comply with their duty to collect and administer the estate.
Some assets, such as small bank balances, can be dealt with without a grant, but most require it. For example, the Land Registry require proof of a grant before a PR can deal with the relevant assets of the deceased.
The grant of representation provides proof of the PR’s authority to act and is needed for the succession estate, which legally vests in the PRs.
10
Q
What is a grant of probate and when is it issued?
A
A grant of probate is required where:
- The deceased left a valid will.
- The will appoints executors.
- At least one executor is willing and able to act.
The grant is issued in the name of the executors who apply.
It may be required even if the will does not dispose of all the deceased’s property.
If an executor’s appointment is limited (e.g., to specific assets or by time), this is reflected in the grant’s authority.
Only the named executors may take out the grant, though they may appoint someone to act on their behalf via power of attorney.
11
Q
What is a grant of letters of administration (with will) and when is it issued?
A
A grant of letters of administration (with will) is issued when:
- The deceased left a valid will.
- No executors are willing or able to act.
It is the correct grant even if the will fails to dispose of all the estate.
Administrators are appointed under the Non-Contentious Probate Rules 1987 (NCPR), with Rule 20 listing those entitled to apply in order of priority.
12
Q
What is a grant of letters of administration and when is it issued?
A
A grant of letters of administration is issued when the deceased died intestate (without a valid will).
This may occur if the deceased did not make a will, revoked a previous will, or the will made is invalid.
Administrators are appointed under NCPR 22, which lists, in order of priority, those entitled to apply for the grant.
13
Q
Provide a summary for the requirement of a grant and different types of grant.
A
A grant of representation is required to confirm the authority of the PRs to administer a deceased person’s succession estate assets.
An executor’s authority to act derives from will and is confirmed by the grant.
An administrator’s authority to act derives from their appointment under the grant.
A grant of probate is the correct grant where the deceased left a valid will that appoints executors, at least one of whom is going to act.
The executors in the will who make the application are named on the grant.
A grant of letters of administration with will is the correct grant where the deceased left a valid will but no executors are acting. Administrators are appointed under Rule 20 NCPR.
A grant of letters of administration is the correct grant where the deceased died intestate. Administrators are appointed under Rule 22 NCPR.
14
Q
Which assets can be administered without a grant?
A
PRs will usually need a grant to confirm their authority to collect, realise, and distribute assets.
However, no grant is required for:
Assets that fall outside the succession estate.
Assets within the succession estate that are covered by exceptions, such as:
- Assets under the Administration of Estates (Small Payments) Act 1965.
- Personal household possessions.
- Cash found in the deceased’s home.
15
Q
What does the Administration of Estates (Small Payments) Act 1965 permit?
A
This Act permits payments to be made to those who appear to be beneficially entitled without formal proof of title.
It applies to a restricted category of assets, including:
- National Savings (e.g., bank accounts, savings certificates, premium bonds).
- Friendly Society and Industrial/Provident Society deposit accounts.
- Arrears of salary and wages.
- Pensions (for police, fire authority, air force, and army personnel).
- Building society accounts.
There is an upper financial limit of £5,000 per asset; if the asset is worth more than this, a grant is required to establish title to the entire sum, not just the amount over £5,000.
16
Q
How does the Small Payments Act work in practice?
A
In practice, banks and financial institutions typically follow their own policies, often releasing sums up to £15,000 or more without sight of the grant.
Each institution has its own evidential requirements before closing an account, which usually include:
- The death certificate.
- The will or confirmation of entitlement under intestacy.
- An undertaking from the PRs confirming their right to administer the asset.
- An indemnity to protect the institution if the payment is made to the wrong person.
17
Q
How are personal possessions and cash handled without a grant?
A
Personal household possessions:
- Title to personal possessions passes by delivery, so proof of ownership is not typically required, except for cars where registration documents are needed.
- PRs are normally able to dispose of chattels without having to produce formal proof of authority, provided they were solely owned by the deceased.
- If there is a joint owner, their consent is required before PRs can sell the item.
- PRs should verify if any specific items were gifted by the deceased in their will before selling them.
Cash:
- A grant is not needed for PRs to take possession of cash found in the deceased’s home.
18
Q
Which property does not need a grant for release in relation to the succession estate?
A
Assets that pass outside the succession estate (i.e., they cannot pass by will or intestacy) do not require a grant for release.
Examples include:
- Property owned as joint tenants (e.g., land or bank accounts) where, upon death, the property passes automatically to the surviving owner via the rules of survivorship.
- Donationes mortis causa (DMC), where ownership or control of the asset was transferred to the beneficiary during the deceased’s lifetime.
- Life policies written in trust, discretionary pension lump sums nominated for a third party, and other nominated assets payable to the named beneficiary upon production of the death certificate.
- Assets held in a trust where the deceased had an interest; the trustee should be notified of the death, and the trust deed will determine the next steps regarding the trust fund.
19
Q
What are the practical advantages of assets administered without a grant?
A
- Releases funds to beneficiaries without waiting for the grant or completion of administration.
- Provides a source of funds to meet expenses, including Inheritance Tax (IHT).
- For small estates or those comprising only assets where no grant is required, it can be a cost-effective method of administration.
Note: Unless an estate comprises only assets where no grant is required, PRs will need to obtain a grant of representation. Even if some assets could be administered without it, it is usually simpler to deal with the entire estate once a grant has been issued.
20
Q
Provide a summary of the administration of assets without a grant.
A
- A grant is usually required to enable PRs to administer the estate assets. However, some assets can be dealt with without a grant.
- Some accounts worth up to £5,000 can be released without a grant (but do not have to be) under the Administration of Estates (Small Payments) Act 1965.
- More generally, many other banks and financial institutions will release sums up to £15,000 (sometimes more) without sight of a grant and in accordance with their own policies.
- Household possessions and cash in the home can be dealt with without proof of title so a grant is not required
- Assets passing outside of the succession estate do not require a grant because these items do not devolve on the PRs.
21
Q
What are the steps related to the death certificate in the pre-grant process?
A
- The death must be registered before a funeral takes place.
- PRs may register the death, but family members typically do this and provide PRs with the death certificate.
- PRs need official copies of the death certificate to send to institutions like banks, building societies, and insurance companies where the deceased held assets.
HMRC, DVLA, and DWP can be notified via a centralised service when registering the death. If not, PRs must notify them individually. - A solicitor may keep a copy of the death certificate for important details like name, date of birth, and date of death.
22
Q
What are the steps related to the funeral arrangements in the pre-grant process?
A
- Family members usually handle funeral arrangements, but PRs (or a solicitor) can do so if needed.
- The will should be checked for funeral instructions (e.g., burial or cremation, religious ceremony, or medical use of the body).
- Funeral costs are a post-death administration expense from the estate funds under s.34(3) Administration of Estates Act 1925 and can be factored into IHT calculations.
- The deceased may have a funeral insurance policy or a pre-paid funeral plan where funeral arrangements are made and paid for before death.
23
Q
How should PRs secure the estate assets before obtaining a grant?
A
- PRs are responsible for preserving the value of the estate and may be personally liable for any loss or damage.
- Steps must be taken to secure valuable items and documents.
- If a property is left vacant, PRs should secure it and notify insurers.
- PRs must inform insurers and DVLA if a vehicle is left unattended and off-road.
- PRs should consider the security of digital assets and the closure of social media accounts.
24
Q
What should PRs do to locate and handle the will or codicil?
A
- PRs need to obtain the original will and any codicils.
- Copies will not suffice for a grant unless permission is obtained from the Probate Registry.
- PRs should verify the will’s validity, checking for correct execution and witness signatures.
- They must also ensure there are no common drafting errors or missing clauses.
- Any incorporated documents should be obtained.
- Codicils should be reviewed in the same manner as the will to ensure they work together logically.
If there is no will, PRs must confirm the deceased died intestate, or they must determine if a lost will existed and reconstruct it if necessary.
- A national wills register may be searched, though it is optional to register a will. There are some commercial organisations that charge for this.
- Only executors are entitled to see the will before a grant is obtained, but after the grant, the will becomes a public document.
25
What is the basis for distributing the estate?
- The will and any codicils should be read fully to identify the beneficiaries.
- If no will exists, the **intestacy rules** determine who benefits.
- Beneficiaries should be informed, and PRs should give a realistic timescale for distribution, as it may take months rather than weeks.
26
How do PRs compile the schedule of assets and liabilities?
PRs need to gather a list of the deceased’s assets and liabilities to:
- Identify and value the estate assets.
- Identify creditors and work out what is owed.
- Determine IHT and estimate each of the beneficiary entitlements.
- Establish whether the estate is solvent.
PRs cannot obtain a grant or calculate IHT without this list.
Family members often help provide asset information, and PRs will contact institutions to confirm the deceased’s dealings and notify them of the death.
It is not uncommon to start the administration with a theoretically complete list only to discover new assets later on that no one knew about. If there are no family members a PR may need to search the deceased’s home for evidence of what they owned e.g. for bank statements or insurance policy documents.
27
How do PRs value different assets in the estate?
PRs must establish **date-of-death values for assets**:
**Bank accounts**: PRs ask for the balance and accrued interest at the date of death.
**Joint accounts**: PRs need to determine the deceased’s proportion of the account, as it may not always be 50%.
**Low-value chattels**: Values are estimated, but any single items worth more than **£500** require a formal valuation. It is usually acceptable to estimate their value. The probate value (what they would fetch if sold) will normally be lower than their value for insurance purposes (replacement cost).
**Quoted shares**: Valued using stock exchange rules. For example, Blue Bottle plc shares are valued by adding **one-quarter (1p) to the lowest value of the share**.
**Private company shares, business interests, or partnerships**: Require a specialist valuation.
**Land**: PRs instruct estate agents to provide valuations. If land is jointly owned, PRs will need to determine the deceased’s share and check Land Registry records for ownership details.
28
What steps must PRs take regarding the deceased’s debts?
PRs must collect information on the deceased’s debts, such as **credit cards, loans, and utility bills.**
PRs should locate creditors not known to the family.
Debts reduce the estate’s value for IHT purposes, except where:
- The debt was used to finance an IHT-exempt asset.
- The debt is not repaid from estate funds.
29
How do lifetime transfers affect the IHT on the estate?
Lifetime transfers made within the 7 years before death affect the IHT due on the estate.
Large transfers may incur an additional tax charge on top of IHT on the estate’s assets.
PRs should ask family members about:
- The nature, date, and value of transfers.
- The recipient of the transfer.
30
Provide a summary of the preliminary steps in the administration of an estate.
- The first “half” of the administration involves steps required to enable the PRs to apply for a grant of representation.
- Family members will usually register the death, arrange the funeral.
- The PRs must locate the original will (and any codicils) to identify the beneficiaries. If there is no will the intestacy rules will form the basis of the estate distribution.
- It is important that the PRs identify any potential problems with the will or codicil before making the application for a grant of representation.
- The PRs must compile a complete list of the deceased’s assets and liabilities as at the date of death and their lifetime transfers. Each institution the deceased had dealings with should be notified of the death.
- When valuing estate assets the PRs should be aware of any particular rules that apply and should record the value of the deceased’s share of any jointly owned assets.
31
What is the distinction between an executor and an administrator regarding authority to act?
**Executor**: A PR appointed by will.
**Administrator**: A PR appointed under the Non-Contentious Probate Rules 1987 (NCPR).
Executors derive their authority to act from the will, meaning the testator directly appoints them in the will, whereas administrators are appointed through legal procedures where no will exists or executors are unavailable.
32
How is the type of grant required for an estate determined?
The type of grant depends on:
- Whether the deceased left a valid will.
- Whether any executors appointed under the will are going to act as PRs.
**Grant of Probate**: Required if the deceased left a valid will and the executors are going to act.
**Letters of Administration (with will) or Letters of Administration**: Required when an administrator will be appointed in cases where there is no will or executors cannot act.
33
What are the key points regarding who has entitlement to a grant of probate?
**Entitlement to act as executor comes solely from the appointment under the will**.
- Only those named in the will are entitled to take out the grant of probate.
- Executors cannot transfer this right to another person but may formally appoint someone to act on their behalf under a power of attorney.
- If the appointment is limited by assets, jurisdiction, or time, this will limit the executor’s authority under the grant.
34
What are the circumstances in which an executor cannot act as a PR (capacity)?
An executor named in the will cannot act if they:
- Pre-deceased the testator or died before taking out the grant. In this case, a substitute executor, if named, may step in.
- Are a minor (under 18). While the appointment is valid, the minor cannot act until reaching 18, **at which point they can apply to act if the administration is still incomplete.**
- Lack capacity to act.
- Are a former spouse/civil partner of the testator, following divorce or dissolution after the will was made, as per s.18A/C Wills Act 1837. They are treated as having pre-deceased the testator unless the will states otherwise.
35
How many executors are required and what are the key points if more than one is appointed?
Only one executor is needed, but often more are appointed for practical reasons.
- If multiple executors are appointed and one dies or is unable to act, the remaining executors can still apply for the grant, provided they explain the situation to the probate registry (e.g., providing a death certificate).
- A maximum of four executors can be named on the grant. If more are appointed in the will, they must decide who will apply. The others can have power reserved, allowing them to step in later if needed, through a grant of double probate.
**Example**: "I appoint my siblings Anna, Bella, Chris, David and Ellie jointly to be the executors of my will." Four of the five executors can take out the grant, and the 5th can have power reserved to them in case a vacancy arises.
36
What happens if a proving PR dies before completing the administration of the estate?
If at least one PR remains, they can continue the administration. If the number falls below the minimum needed, a new PR may be appointed.
If no PR remains, what happens depends on the circumstances:
If the last executor died but appointed their own executor, the Chain of Representation applies under s.7 AEA 1925, allowing the new executor to administer both estates without requiring a new grant.
If the Chain of Representation does not apply, a second grant will be issued, called a grant of letters of administration de bonis non, provided:
- The administration is incomplete.
- There are no remaining PRs.
- A previous grant has been issued.
37
How does the chain of representation work, and what is an example of it in practice?
The Chain of Representation allows the executor of a deceased PR’s estate to automatically become the executor for the original testator’s estate, provided the deceased PR had appointed an executor and that person took out a grant.
Example:
- T dies and appoints CP as sole executor. CP takes out a grant for T’s estate but dies before completing the administration. CP made a will appointing D as their executor. If D takes out a grant for CP’s estate, D automatically becomes executor of T’s estate as well under the chain of representation.
- No additional grant is required, as the grant issued to D for CP’s estate also covers T’s estate.
38
Provide a summary of the process whereby executors are appointed by will.
- An executor derives their authority to act from the will
- Any adult with capacity may be appointed and act as executor
- A minimum of one executor is required and a maximum of four can be named on the grant of probate
- If an executor named in the will cannot act, the remaining executors (providing there is at least one) may still apply
- If a PR dies after having taken out a grant the remaining PRs may continue with the administration. If a sole surviving executor dies before the administration is compete, either s.7 AEA or a grant de bonis non apply
39
What type of grants are relevant to administrators?
Grant of Letters of Administration (with will): Appropriate where the deceased left a valid will but no executors are willing/able to act.
Administrators (not executors) are appointed. This grant applies even if the will does not dispose of the entire estate (full or partial intestacy).
Grant of Letters of Administration: Issued when the deceased died intestate (without a valid will).
Administrators are appointed under **NCPR**.
40
What happens if the deceased left a will but no executor is available to act?
Grant of Letters of Administration (with will) is required.
NCPR 20 outlines the following procedure:
- If the executor (a) cannot act, trustees of the residuary estate (b) may apply.
- If no trustees exist, residuary beneficiaries (c) may apply.
**Example**: The deceased’s spouse, the named executor, has pre-deceased. The residue of the estate is held in trust for their adult children, with the brothers as trustees.
The brothers would have the next right to apply for the grant under NCPR 20(1)(b), after clearing off the spouse.
41
What is the statutory order of entitlement to be appointed as an administrator under NCPR 20?
The order under **NCPR 20** for those entitled to apply for a grant of Letters of Administration (with will) is:
a) Executor
b) Trustee of the residuary estate
c) Residuary beneficiary (whether taking absolutely or for life), or, in cases of partial intestacy, intestacy beneficiary
d) PRs of anyone in (c) (other than trustees or life tenants)
e) Other beneficiaries or creditors
f) PRs of anyone in (e)
**Key Points**:
Entitlement correlates with the distribution of the estate under the will, rather than familial relationships with the deceased.
A person in a lower category cannot apply if someone in a higher category is able and willing to act as administrator.
42
How does the clearing-off process work?
**Clearing-off**: The applicant for the grant must provide an explanation as to why someone with a better right to act as administrator is not applying.
**Example**: If no executor (a) is available, the applicant must show why no trustee of the residue (b) or residuary beneficiary (c) is applying instead.
However, clearing-off does not apply to individuals within the same category. For instance, if there are two residuary beneficiaries (c), one residuary beneficiary does not need to explain why the other residuary beneficiary is not making the application.
43
What happens if multiple persons in the same category are entitled to apply?
Individuals within the same category have equal rights to apply for the grant of representation.
However, **beneficiaries with vested interests are preferred over contingent beneficiaries in cases where multiple individuals within the same category seek to apply**.
**Example**: If there are three residuary beneficiaries (c) and no executor (a) or trustee of the residue (b), all three residuary beneficiaries have an equal right to apply for the grant of representation.
44
What happens with administration when the deceased dies without a valid will?
When the deceased dies intestate (without a valid will), a **Grant of Letters of Administration** is required under **NCPR 22**. The order of entitlement to apply for the grant is:
a) Surviving spouse or civil partner
b) Children of the deceased
c) Father and mother of the deceased
d) Whole-blood siblings
e) Half-blood siblings
f) Grandparents
g) Whole-blood uncles and aunts
h) Half-blood uncles and aunts
If no one from (a)-(h) is available to apply, the **Crown** may apply under NCPR 22(2), or, failing that, a **creditor** of the deceased may apply under NCPR 22(3).
45
What is required for a person to apply to be an administrator under NCPR 22?
The applicant must:
- Provide evidence of their familial relationship to the deceased in order to show which category they fall into.
- Demonstrate that they have beneficial entitlement to the estate. This will commonly align with the order of entitlement to apply for the grant, but this is not always the case.
Example:
A man dies intestate, survived by his spouse and two adult children.
The spouse has the best right to apply under NCPR 22(a), but must wait 28 days before applying, as per s.46(2A) AEA which says she is not beneficially entitled to the estate unless she survives the man by 28 days.
If the spouse does not apply, the children, being the next category under NCPR 22(b), may apply, but they have no beneficial entitlement as the whole estate passes to the spouse under the statutory legacy.
46
What happens if the deceased’s PR lacks capacity or is a minor?
A person who lacks mental capacity is unable to act as a PR.
- If no one else with equal or greater entitlement is available, Rule 35 NCPR determines who can act in their place.
- A minor cannot act as administrator, but an application can be made on their behalf.
An adult with equal entitlement to the minor takes priority over a representative of the minor. An application on behalf of a minor can only be made if:
- No adult with equal or greater entitlement is available to act, or
- The minor is the only person in the highest entitled category, or all in that category are minors.
47
What is the required number of administrators for letters of administration (with will) and letters of administration?
In respect of both letters of administration (with will) and letters of administration:
Only one administrator is required.
Unless there are:
- Minor beneficiaries in the estate, or
- Life interests in the estate.
In such cases, two administrators will be required under s.114 Senior Courts Act 1981.
This means two are needed if any part of the estate is passing to a minor beneficiary or is to be held on a life interest trust.
If two administrators are required, but there is only one able/willing person in the category with the best entitlement to apply:
That person may apply for the grant with somebody from the next category of entitlement (as per Rule 25(1) NCPR).
A maximum of four applicants may apply for the grant.
48
Provide a summary of the appointment of administrators under the Non-Contentious Probate Rules 1987.
Administrators are appointed under a Grant of Letters of Administration (with will) in accordance with NCPR 20 for estates where there is a valid will but no acting executor. The entitlement to apply depends on the provisions in the will.
Administrators are appointed under a Grant of Letters of Administration in accordance with NCPR 22 for estates where the deceased died intestate. The entitlement to apply depends on the familial relationship with the deceased and a beneficial entitlement to the estate.
The minimum number of administrators required is one, unless there is a life or minor interest, in which case two are needed. The maximum possible is four.
A minor or someone without mental capacity does not have the capacity to be appointed as PR.
49
What happens if an executor appointed under the will is unable to act?
If the deceased left a valid will which appoints executors who are willing and able to act, those executors will apply for a grant of probate.
An executor is unable to act if they:
- Pre-deceased the testator or died before taking out the grant.
- Are a minor.
- Lack capacity.
- Are the testator’s former spouse/civil partner and the divorce/dissolution took place after the will was made, as per s.18A/C Wills Act 1837 (unless the will expressly states otherwise).
Remaining executors can still apply for the grant of probate but must explain to the probate registry why all appointed executors are not applying.
If an executor is a minor, probate can be issued to the other executors with power reserved to the minor, who can apply upon reaching 18 (Rule 33 NCPR). Power may also be reserved to an executor who lacks capacity.
50
What can happen if an executor named in the will is unwilling to act?
An executor may be able to apply but does not wish to due to reasons like being unwell, believing the role is complex, time constraints, potential disputes, or insufficient funds to meet expenses.
If an executor is unwilling to act,
they have options:
**Renunciation**: Formally giving up their right to apply for probate.
**Reserving power**: Retaining the option to apply for probate later.
**Appointing an attorney**: Designating another person to act on their behalf.
51
What is renunciation in the context of executors?
An executor may formally renounce (give up) their right to apply for probate (the legal right to deal with someones assets etc. when they die), and the administration continues as if they had not been appointed.
The executor must sign a form of renunciation, which must be submitted to the probate registry.
The renunciation will be noted on the grant when issued and is final; the executor cannot change their mind without court approval.
An executor cannot renounce if they have intermeddled with the estate, and the court will not accept an attempt to renounce under such circumstances.
52
What is intermeddling?
Intermeddling occurs when a person takes steps indicating they have accepted their appointment and are fulfilling their duty to administer the estate, even if they do not wish to act as executor.
**Examples include:**
- “Obtaining, receiving or holding” the deceased’s assets or forgiving any debt or liability due to the estate (s.28 Administration of Estates Act 1925).
- Paying debts, selling assets, or disposing of personal property (under common law).
Acts of common humanity, such as arranging a funeral or securing estate assets, do not amount to intermeddling.
53
Who is able to renounce, and what grant is needed if an executor has intermeddled?
A testator died a month ago. The family are very upset and need some advice. The testator left a valid will appointing A, B and C as executors.
A has taken no action so far and is very upset. A is not certain they want to help with the administration.
B and C have taken charge and arranged the funeral, notified relevant banks of the death and sold some of the household contents.
Who can renounce:
- A can renounce because they have not intermeddled.
- B and C cannot renounce because it appears they have both intermeddled. Arranging a funeral is an act of common humanity and does not amount to intermeddling, but selling household possessions does.
- B and C can apply for the grant of probate without A.
54
What does it mean to reserve power as an executor?
If an executor does not want to act initially and will not apply for the original grant, but wishes to retain the option to apply for probate later, they may reserve the power to do so.
To reserve power, at least one other executor must take out the grant of probate.
The reserved power allows the executor to apply for a **grant of double probate** to run concurrently with the original grant.
There is no formal reservation process; however, the executor(s) applying for probate must give **notice of their intention to apply to the executor who reserved power, which will be noted on the grant** (Rule 27 NCPR).
55
How can an executor appoint a solicitor?
An executor who does not want to be directly involved in the administration may appoint another person as attorney to act on their behalf.
This can occur:
- **After obtaining a grant**: Under s.25 Trustee Act 1925, a personal representative (PR) may delegate functions to an attorney for a maximum of 12 months, renewable if needed, with notice given to other executors.
- **Before obtaining a grant**: The attorney cannot apply for a grant of probate if not named in the will; instead, if other executors apply, they would apply for a grant of probate, and the attorney would make a parallel application for letters of administration (with will).
56
What happens when all executors are unable or unwilling to act?
If no executor is able or willing to act, a grant of probate cannot be issued.
Instead, a grant of letters of administration (with will) is appropriate, and an administrator would be appointed under NCPR 20.
**Example**, if a will appoints X and Y as executors, the whole estate passes to Z absolutely, but X died before the testator and Y wants to renounce, no grant of probate will be issued. Instead, Z will apply as an administrator under NCPR 20 for a grant of letters of administration with the will.
57
What are the conditions for an administrator to be unable to act?
If the deceased left a valid will without appointing willing or able executors, or if the deceased died intestate, administrators will be appointed under either NCPR 20 or 22.
A person cannot act as an administrator if they:
- Pre-deceased the testator or died before taking out the grant (in some cases, their PR may act).
- Are a minor (unless an application is made on their behalf).
- Lack capacity.
- Do not have a beneficial entitlement to the estate (for appointments under NCPR 22 only).
58
What options does an administrator have if they are unwilling to act?
An administrator with a right to apply may be able to act but does not wish to, perhaps due to being unwell or finding the role too complex or onerous.
If a potential administrator does not wish to act, they have options:
- **Renunciation**: Formally giving up their right to apply for the grant, allowing the next person best entitled to apply.
- **Appointing an attorney**: Designating another person to act on their behalf.
Unlike executors, an administrator cannot reserve power.
59
What is the process of renunciation for an administrator?
A potential applicant may formally give up their right to apply for the grant, allowing the next best entitled person to do so.
Renunciation is final, and because administrators cannot reserve power, they must think carefully before renouncing.
A signed form of renunciation must be submitted to the probate registry with the application for the grant, and it will be noted on the grant.
An administrator may renounce at any time before the grant is issued, even if they have intermeddled with the estate.
An executor who renounces their right to apply for a grant of probate does not automatically renounce their right to apply as administrator under NCPR 20/22, so they may need to renounce both rights.
60
What is the procedure for an administrator appointing an attorney?
An administrator may appoint another person as attorney to act on their behalf.
The power may be given by the administrator (donor) to the attorney (donee):
- **After appointment under the grant**: Under s.25 Trustee Act 1925, a PR may delegate their functions to an attorney for a maximum of 12 months, which can be renewed. Notice must be given to the other administrators.
- **Before obtaining a grant:** The applicant is delegating the power to apply for a grant, permitted under Rule 33 NCPR. The power of attorney must be provided to the probate registry as part of the application.
61
What are citations in the context of probate?
If a PR is entitled to act but decides not to, they should take formal steps to give up their right to apply so others can proceed with administration.
If those entitled to apply refuse to act but do not renounce their right to apply, or if an executor intermeddles but refuses to apply for the grant:
**It is possible to obtain a court direction** (using the citation process) to:
- **Require** a person to take out a grant.
- **Remove** their right to apply.
- **Authorise** another person to take on the administration.
62
Provide a summary of the position where a PR is either unable or unwilling to act.
An unwilling executor may renounce probate (unless they have intermeddled), have power reserved (provided another executor takes out the grant) or may appoint an attorney.
An executor who has power reserved may apply later to administer the estate under a grant of double probate.
An unwilling administrator may renounce their right to apply for a grant (even if they have intermeddled) or appoint an attorney. They cannot have power reserved.
A minor or someone who lacks capacity cannot be appointed as a PR.
Citations may be used to force an unwilling PR to act, remove their right to act, or authorise another to act in their place.
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What are the main stages of the administration process carried out by PRs and their duties related to IHT?
The administration process is divided into two key stages:
1. **From death to the issue of the grant of representation**:
This includes the submission of the account and payment of inheritance tax (IHT).
2. **From the issue of the grant to completion of the administration.
PRs' duties under s.216 Inheritance Tax Act 1984**:
Deliver an account to HMRC regarding the deceased’s estate.
Pay any IHT due in respect of the estate.
The account must include:
- All taxable property in the estate and its value immediately before death.
Any exemptions or reliefs that apply.
IHT is calculated as follows:
- Value of taxable assets minus debts and applying exemptions/reliefs.
- No IHT on assets passing to a spouse or charity.
Apply tax rates:
- 0% for amounts under the Nil Rate Band (NRB) (£325,000).
- 40% on any amount above the NRB.
**Transferable NRB (TNRB)**: The unused NRB of a pre-deceased spouse may be claimed by the deceased’s estate
**Key Deadlines**:
- IHT account submission: Within 12 months from the end of the month of death.
- IHT payment: Within 6 months from the end of the month of death (interest charged after).
64
What are the deadlines for submitting the IHT account and paying IHT?
IHT account submission deadline:
**12 months from the end of the month in which the death occurred**.
IHT payment deadline: **6 months from the end of the month of death.**
Interest applies to unpaid tax after this period.
**Example:**
Deceased died on 18 January:
IHT account due: 31 January the following year.
IHT payment due: 31 July.
PRs should aim to submit the account and pay IHT before these deadlines to: Ensure the grant is issued, and to avoid interest charges.
65
Under what circumstances can IHT be paid by instalments, and what assets qualify for this option?
IHT can be paid by 10 equal annual instalments for certain assets under ss. 227-228 IHTA 1984.
- First instalment due within 6 months after the end of the month of death.
Interest is usually charged on unpaid - IHT after this deadline.
Qualifying assets:
- Land and buildings.
- Company shares/securities giving the deceased control.
- Some unquoted shares/securities (specific conditions apply).
- Farms or interest in a farming business.
- Business or interest in a business.
- Timber.
Instalment option ceases if the asset is sold, and the outstanding IHT becomes payable immediately.
66
When must the PRs complete an IHT400, and what are the key factors?
IHT400 must be completed unless the estate is excepted.
- PRs report assets and liabilities using this form.
- Supplemental schedules (IHT401 - IHT420) may need to be completed based on the estate's assets.
No IHT is payable where -
Low value excepted estate:
- Gross value below the NRB and any TNRB available from their spouse.
Exempt excepted estate:
- Gross value not exceeding £3 million, and after exemptions (spouse/charity), the net estate falls below the NRB (current amount and any transferred).
Key factors for excepted estate:
- No gifts with reservation of benefit.
- Foreign assets below £100,000.
- No claim for Residence Nil Rate Band (RNRB).
- Only one life interest & its value cannot exceed £250k (unless passing to a spouse).
- Only specified transfers & total value cannot exceed £250k.
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What is a corrective account (Form C4) and when must it be filed?
A corrective account (Form C4) is used to inform HMRC of:
- Additional assets/liabilities discovered after the IHT400 submission.
- Changes to asset values or exemptions/reliefs originally claimed.
- Variations in beneficiary entitlements affecting IHT liability.
If too much or too little IHT has been paid based on the original IHT400, the PRs must correct the error:
- Additional IHT due if the estate value increases.
- Refund of IHT if the estate value decreases.
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How can PRs raise funds to pay IHT before obtaining a grant of representation?
PRs need to pay IHT before obtaining a grant but may not have access to estate funds.
Options for raising funds:
- Direct Payment Scheme: Banks/building societies make direct payments from the deceased’s accounts to HMRC.
Borrowing:
- From a beneficiary (often interest-free).
- From a bank (commercial rates of interest apply).
PRs can request a direct payment using Schedule IHT 423.
69
Provide a summary for the payment of inheritance tax and the obligation to account to HM Revenue & Customs (HMRC).
The value of the deceased’s assets and liabilities at the date of death are set out in form IHT 400.
No form is required for an excepted estate (low value or exempt).
IHT 400 for any estate which is not excepted.
If IHT is payable on an estate, it will never be excepted.
If no IHT is payable, the estate may be excepted if the required criteria are met.
The deadline for submitting the IHT 400 is 12 months from the end of the month of death.
The deadline for paying IHT (or the first instalment where instalment option is used) is 6 months from the end of the month of death.
To raise funds to pay the IHT due prior to the issue of the grant the PRs may use the direct payment scheme or arrange to borrow money.
70
What is the application process for applying for a grant?
Applicants must demonstrate entitlement to the grant by providing sufficient information about the deceased’s estate.
This can be done by:
- Completing and posting a paper application form to the Probate Registry.
- Submitting an online application via HMCTS service.
Supporting documentation must also be submitted, and the format of the application depends on the applicant and the type of estate/grant required.
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How are professional applications for grants different from other applications?
Professional applications are made by solicitors or probate practitioners. This may be because the solicitor or firm is appointed as PR, or where they are instructed by the PRs and submit the application on their behalf.
These applications fall into three categories:
**Mandatory online application**: This includes most grants of probate.
**Online application** possible but not mandatory: Some simple applications under NCPR 20 and 22.
**Mandatory paper application**: Includes non-standard grants and more complicated applications under NCPR 20 and 22.
This includes::
- Second grant of probate (e.g., to an executor who previously reserved power).
- Grants to a PR where the chain of representation applies.
- Grants where the original will is missing or there are issues with the will.
- Grants to attorneys.
- Grant under NCPR 20 if life interest arises.
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What are PA1A and PA1P forms, and when are they used?
When a solicitor must decide whether to make an online or paper application, if a paper application will be made, the solicitor must complete either form PA1A or PA1P:
**PA1A**: Used when the deceased did not leave a will, applying under NCPR 22.
**PA1P**: Used when the deceased left a valid will, whether or not executors are appointed. It is important to identify the correct grant required and to complete the appropriate application form (where a paper application is made). When complete, the paper forms are sent to the probate registry.
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What information must be provided to the Probate Registry in support of an application?
All applications, irrespective of the type of grant or whether the application is made online or by PA1A/P, require applicants to:
- Confirm the identity of the deceased and the applicants.
- Justify the type of grant requested and their entitlement to act as PR.
- Provide information about the value of the estate and inheritance tax (IHT) status of the estate.
- Complete the legal statement on the probate form confirming the information provided is correct and that they will administer the estate properly.
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What information is required regarding the identity of the deceased and applicants in the application process?
The application must include:
- The full name of the deceased (as per the death certificate), date of birth, and date of death.
= Any other names under which the deceased owned assets. This ensures the grant will be issued in both names so PRs can deal with assets held in either.
- The deceased’s last usual residential address, which can be a residential nursing home.
- The testator's domicile, marital status, and the value of any foreign property should also be confirmed.
- Each applicant’s full name, address, and contact details are required. Information for up to four applicants can be provided (the maximum who can be named on the grant).
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What qualifies executors for entitlement to a grant?
- Executors are entitled to act by virtue of an appointment under the will. The deceased’s will and any codicils to it are therefore evidence of this.
- Original testamentary documents must be submitted so they can be confirmed as valid. This is known as “proving” the will. The original documents are not returned.
- Information about the physical condition of the will is given, along with confirmation that all of its pages are submitted.
- If an executor’s true name differs from that in the will, this should be explained.
- If anyone named is not applying (e.g., because they pre-deceased, renounced, or reserved power), evidence is needed, such as a death certificate, form of renunciation, or confirmation that notice was given to those to whom power is reserved.
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What must administrators under NCPR 20 include in their application for a grant?
Applicants under NCPR 20 should:
- State which category of applicant they fall within (with reference to the will).
- Clear-off anyone with a better right to apply (but not those with equal right), explaining why executors appointed by the will are not acting.
- State whether any beneficiary is a minor or if any life interest arises (in either case, at least two administrators are then required).
77
What is required of applicants under NCPR 22 for a grant application?
Applicants under NCPR 22 should:
- State their familial relationship to the deceased or identify which category of applicant applies, and confirm they are entitled to the whole or part of the estate.
- Clear-off anyone with a better right to apply (but not those with equal right), explaining who surviving family members are.
- State whether any beneficiary is a minor; if so, at least two administrators are required.
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What information is provided regarding the estate value and IHT status when applying for a grant?
- The gross and net estate values passing under the grant (succession estate) must be provided. The grant only confers power on PRs to deal with assets within the succession estate.
- If an IHT 400 was completed, applicants must confirm its submission to HMRC and payment of IHT.
- A letter from HMRC confirming the processing of IHT 400, containing a unique code and estate values, is required to submit the grant application.
- This applies to paper and online applications. If the estate is an excepted estate, gross and net values of the taxable estate must be included without needing a form for HMRC.
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What is the legal statement required in the application process for a grant?
Applicants formally confirm compliance with obligations to collect and administer the estate (s.25 AEA) and verify the truth of the form's contents. Each applicant or their legal representative acting for them must sign the form.
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What does the term "settled land" refer to in the application process for a grant?
Settled land refers to a specific interest in land under a trust governed by the Settled Land Act 1925.
- Interests in settled land differ from normal trusts of land and cannot be created post-1 January 1997.
- Applicants must state if the deceased had an interest in settled land; if so, a separate grant is required to deal with the legal estate.
- It is unusual for an estate to include settled land.
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What considerations must applicants take into account when completing their application?
Applicants should consider the supplemental documentation required to support their application.
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Provide a summary for the process of applying for a grant of representation.
The application for a grant may be made online or by completing PA1A or PA1P.
If a PA form is going to be used, **PA1P is completed if the deceased left a valid will** and **PA1A is completed if the deceased died intestate**.
If an online application is made, the applicant simply needs to answer the questions asked correctly, and this enables the probate registry to distinguish the different kinds of estate.
Applicants must provide sufficient information to the probate registry to allow them to verify those applying to be appointed as PR are entitled to the grant requested.
Applicants must sign a statement of truth by which they promise to comply with their legal obligations to administer the estate.
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What additional items must be lodged with the probate registry when applying for a grant of representation?
Needed for **all applications**:
- Online application or PA1A or PA1P
- Application fee + £ per sealed grant
Needed for **some applications**:
- Certified copy of the death Certificate
- Original Will / Codicil (if testator made one)
- Form of Renunciation (if an executor is renouncing)
- Affidavit evidence
- Power of Attorney (if an attorney is applying)
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What are the requirements regarding Probate Registry Fees and the death certificate when applying for a grant of representation?
Applicants must pay the probate registry fee, which varies based on whether a professional is applying and the estate's value. There is no fee for estates worth less than £5,000.
- The Probate Registry provides sealed copies upon request; the number depends on estate assets, e.g., one per asset holder.
- A certified copy (not a photocopy) of the death certificate must be included.
85
What is the procedure regarding testamentary documents and renunciation when applying for a grant of representation?
If the deceased left a valid will, the original must be submitted. The Probate Registry confirms its validity by issuing the grant, thus "proving" the will/codicil.
- This includes any codicils, even if previously revoked, as revocation does not reinstate the original terms of the will.
- An executor wishing to renounce must complete a form of renunciation, which must be included in the application. This renunciation is final and means the administration is treated as if the executor had not been appointed (s. 5 AEA 25).
86
How do inheritance tax forms apply in the probate application process for excepted and non-excepted estates?
For excepted estates, there is no IHT payable, and personal representatives do not need to submit an IHT form.
For non-excepted estates, an IHT400 must be completed and sent to HMRC, not the probate registry.
HMRC provides confirmation to the applicants, and the Probate Registry will not issue the grant without the unique code and estate values from this letter.
87
What are the requirements for power of attorney and affidavits in the probate application process?
If an executor or beneficiary appoints an attorney to apply on their behalf, the attorney's details must be included, along with a declaration explaining why the executor is not applying.
- The power of attorney, commonly Form PA11, must be completed by the donor and submitted with the application.
- Affidavit evidence may be required if there is a valid will, but uncertainty regarding its validity exists.
- The probate registry would only be sent the power of attorney if the grant was being issued in the name of the attorney i.e. the executor was delegating their right to apply.
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Provide a summary for all of the items which should be submitted to complete the application for a grant.
You should be aware of the items that comprise the application for a grant:
Needed for **all applications**:
- Online application or PA1A or PA1P
- Application fee + £ per sealed grant
Needed for **some applications**:
- Certified copy of the death Certificate
- Original Will / Codicil (if testator made one)
- Form of Renunciation (if an executor is renouncing)
- Affidavit evidence
- Power of Attorney (if an attorney is applying)
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What is an affidavit?
An affidavit is a formal written statement of fact that a person signs under oath.
- The person making the affidavit (deponent) swears or affirms that the contents are true.
- If requirements are met, facts can be admitted as evidence in legal proceedings.
The legal requirements include:
- The jurat must be signed by all parties and dated.
- The witnessing individual (independent solicitor or commissioner for oaths) must complete and sign the affidavit, stating their name, address, and qualifications.
- The jurat must follow immediately after the text, not on a separate page.
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When are affidavits required?
Affidavits may be needed when there is a valid will but uncertainty exists about its validity or interpretation.
The original will is submitted alongside the affidavit, confirming circumstances surrounding its drafting or execution.
Common scenarios requiring affidavits include:
- Compliance with s.9 Wills Act
- Knowledge and approval
- Date of the will
- Physical condition of the will
91
What is required for due execution under s.9 Wills Act 1837?
An affidavit of due execution is necessary if the personal representative (PR) believes the will is valid but execution requirements under s.9 Wills Act 1837 are unclear.
Issues indicating unclear execution include:
- Oddly placed signatures
- Absence of an attestation clause with signatures at the end
The affidavit, usually made by a witness, confirms the will was executed per required formalities. This is called an **addidavit of due execution**, which can be used to confirm compliance with s 9 Wills Act 1837, that **knowledge and approval were present, and the date on which the will was signed**. However, an affidavit of due execution cannot be sworn.
If accepted by the probate registry, the application for the grant can proceed.
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What is the significance of knowledge and approval in the context of wills?
A properly executed will with a standard attestation clause raises a presumption of knowledge and approval.
- If doubts arise (e.g., the testator was blind, could not read the will, or showed signs of frailty), an affidavit of due execution may be required.
- The affidavit, typically from a witness, confirms the circumstances of execution, such as whether the will was read to the testator.
- To avoid the need for an affidavit, the attestation clause can reflect any special circumstances regarding the will's signing.
93
Why is the date of the will significant, and how can it be confirmed with an affidavit?
The probate registry must confirm the date the will was signed to ensure it is the last will made by the testator.
Doubts regarding the date may arise if it is:
- Missing
- Incomplete
- Contains multiple dates
An affidavit of due execution by a witness can confirm the correct date alongside the original will.
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How does the physical condition of a will affect its validity?
The physical condition of the will may create interpretative issues and affect whether its contents can be enacted.
- Problems may arise from alterations made to the text, which can complicate determining their timing (before or after execution).
- For example, if a gift to a friend is crossed out, the alteration is valid if made before execution.
- An **affidavit to alterations** may be submitted by a witness to establish timing.
In the absence of affidavit evidence, PRs will have to rely on the presumptions regarding timing and interpretation in s 21 Wills Act 1837 and the common law when deciding how to distribute the testator’s assets.
Signs of potential tampering include:
- Pin holes or paperclip indentations
- Non-consecutive numbering
- Evidence of attempts to revoke the will (e.g., burning, tearing)
In such cases, an affidavit of plight and condition may be needed.
95
What is an affidavit of plight and condition and when is it required?
In situations where they are physical signs that suggest a will may be incomplete or have been tampered with, including pin holes (indicating staples have been removed) etc., a **affidavit of plight and condition** may be required.
The affidavit should be signed by someone who is able to confirm the condition of the will when it was executed, and its condition later when it was found following the death of the testator.
96
What is the role of affidavits regarding missing wills or testamentary documents?
If there is evidence suggesting another testamentary document was to be attached to the will, an **affidavit of searc**h may be required.
The personal representative confirms inquiries made and searches carried out for the missing document.
97
What practical considerations should be noted about affidavits in probate applications?
Affidavits require a suitable deponent who is able and willing to provide the necessary evidence.
- Properly drafted wills reduce the need for affidavit evidence.
- Issues commonly arise with 'home-made' wills or those not supervised by a solicitor.
- Clients should be advised not to make alterations to the will and to maintain the document's condition.
- Since November 2020, in non-contentious probate matters, a witness statement with a Statement of Truth can substitute for affidavit evidence.
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Provide a summary of the circumstances in which affidavit evidence may be required when making an application for the grant of representation.
-An affidavit can sometimes be required when an application is made for the grant of representation.
-Affidavits can be needed where there is evidence to suggest a problem with the validity or enforcement of a will or codicil.
- An affidavit:
of **due execution** can be used to confirm compliance with s 9 Wills Act 1837, that knowledge and approval were present, and the date on which the will was signed.
as **to alterations** can be used to confirm the timing of alterations made to a will.
of **plight and condition** can be used to confirm the physical condition of the will at execution and after death.
of **search** can be used to confirm steps taken to locate missing documents.
