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Wills and the Administration of Estates > Administration Pre-Grant > Flashcards

Administration Pre-Grant Flashcards

(68 cards)

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1
Q

What is administration?

A

Legal process for managing distribution of estate when a person dies, paying debts, taxes, estate expenses

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2
Q

What is a personal representative?

A

Someone permitted to administer the deceased’s estate

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3
Q

What do you call a PR appointed by will?

A

Executor

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4
Q

What do you call a PR appointed by statute?

A

Administrator

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5
Q

What is a grant of representation?

A

It is a court order confirming the authority of the PRs to act, and to confirm the validity of the deceased’s will or that the deceased died intestate

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6
Q

How is a PRs power limited?

A

PR’s power is conferred by the grant and limited to the assets passing under the will or intestacy i.e. succession estate

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7
Q

What is the role of the PR?

A

Statutory duty to collect deceased’s assets, ensure debts paid, taxes met, and distribute to all beneficiaries

PR can be a beneficiary of the estate

PR is a fiduciary role

All duties must be performed in accordance with a duty of care - same as for trustees

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8
Q

How are PRs appointed?

A

Will - executor

Statute - NCPR 1987

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9
Q

When are PRs automatically trustees of a trust?

A

Intestacy

Statutory trust arises under an intestacy

PRs are the trustees of a trust held on behalf of a minor beneficiary

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10
Q

What is the role of a solicitor in pre-grant administration?

A

Solicitor can be instructed by PRs for advice on administration

Solicitor has been appointed as executor under deceased’s will

Solicitor has been instructed to act on behalf of a party to a contentious probate matter

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11
Q

When is a grant of probate required?

A

Deceased left a valid will

Will appointed executors

At least one of the executors appointed is going to act

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12
Q

When is a Grant of Letters of Administration (with will) required?

A

Deceased left a will

But appoints no executors who are willing / able to act

Administrators are appointed under NCPR Rule 20

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13
Q

When is a Grant of letters of administration - no will - required?

A

Deceased died intestate

Appointed under NCPR Rule 22

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14
Q

Which assets can be released without a grant?

A

Assets which can be distributed under Administration of Estates (Small Payments) Act 1965

Personal household possessions (chattels)

Cash

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15
Q

Assets which can be released without a grant: What assets are covered by AOE (Small Payments) Act?

A

National Savings (including bank accounts, savings certificates, premium bonds)

Friendly Society and Industrial and Provident Society deposit accounts

Arrears of salary and wages

Pensions where deceased was in the police, fire authority, air force or army

Building society accounts

Upper limit of £5k per asset - if above, whole asset will need the grant to be released.

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16
Q

What steps must be completed before the grant?

A

Death certificate / funeral

Secure estate assets

Locate will / codicil

Basis of distribution and identify beneficiaries

Schedule of assets and lifetime transfers

No strict chronological order

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17
Q

Is cost of funeral redeemable from the estate?

A

Yes - payable from estate fund as long as reasonable

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18
Q

What must PRs consider when securing the estate?

A

Duty to preserve the value of the estate

Must ensure items / documents are safe

Security of digital assets / closure of social media accounts

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19
Q

What should PRs consider when they locate will or codicil?

A

Need original will at start of the administration process

Copy is not sufficient to get grant

Check will is valid

Make sure codicil makes sense when read with the will

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20
Q

What should PRs consider if they think an individual died intestate?

A

Evidence will was made but cannot be located - PRs need to find out what happened

Revoked or lost? If lost - steps should be taken to reconstruct will

Commercial organisations charge a fee for searching against national wills register [completely optional]

Once grant issued will is a public document

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21
Q

What should PRs consider when creating a schedule of assets and lifetime transfers?

A

PRs must compile an accurate list of the deceased’s assets and liabilities to:

Identify and value estate assets

Identify the deceased’s creditors (to whom PRs also owe a duty)

Work out steps needed to manage distribution of assets

Calculate IHT due

Establish if estate is solvent

Estimate what each beneficiary is entitled to

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22
Q

Once schedule of assets and liabilities has been prepared how should PRs approach contacting organisations to acquire assets?

A

Bank accounts: PRs should request from bank a summary of account balance plus interest

Joint accounts: establish proportion owned by deceased (50/50 presumption but check)

Low value chattels – ok to estimate, probate value will be less than cost to replace

Single items worth more than £500: formal probate valuation should be obtained; companies will do this, costs are payable from estate funds

Quoted shares: special rules for this: taking lower of two prices on Stock Exchange Daily List and adding ¼ of the difference between the higher and the lower value

Private shares / partnership interests / sole trader business: specialist valuation instructed

Financial investments otherwise: broker will provide a list of shareholdings and date of death values

Land: PRs will instruct estate agents to prepare a valuation
Common that more than one instructed and average value used to avoid HMRC issues
 Jointly owned; value of deceased’s share should be established
 PR may need to see Land Registry copies to establish basis on which joint property owned and identity of co-owners

Details of debts and liabilities: credit card statements, loan documents, bills, etc

Lifetime transfers: PRs must check nature of any transfer, date made, amount or value, identity of donee

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23
Q

When will an executor be considered unable to act?

A

If they have pre-deceased the testator – or survived, but died before taking out the grant

Are a minor: appointment remains valid and the power can be reserved to the minor who when they turn 18 can make an application later if administration remains incomplete

Lack capacity

Are testator’s former spouse / CP and divorce took place after will was made – S18A/C Wills Act 1837 - Unless the will expressly overrides the effect of this

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24
Q

What happens if an executor appointed by a valid will is a minor?

A

Appointment remains valid and power can be reserved to the minor who can apply to be executor when they turn 18 is administration is incomplete.

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25
What is S18A/C Wills Act and how can it be ignored?
Says that a testator's former spouse / CP cannot be an executor if they divorced after the will was made Ignored if will expressly overrides the effect of this
26
How many people can be on the grant?
Four - if more than four appointed, they should decide who is going to take out the grant
27
What is an application for a grant of double probate?
When power is reserved to remaining executors who are not on the initial grant - if a vacancy arises and administration remains incomplete, can apply.
28
What happens if a proving PR dies?
If there is a surviving PR - can continue with administration If there is no PR left - either chain of representation, or grant of letters of administration de bonis non issued.
29
When does the chain of representation apply?
When the last surviving executor dies having appointed an executor of their own estate, and this person takes out the grant probate for the dead executor’s estate The second executor becomes executor of the original testator's estate, as well as for the original executor. No additional grant is required. Does not operate where administrators are acting.
30
What are letters of administration de bonis non?
A grant of goods not yet administered, authorising a new PR to deal with the remaining estate Requirements: Administration is incomplete No remaining personal representatives There has been a previous grant of representation
31
Who is entitled to the grant on a letters of administration with will? List in order
NCPR Rule 20 applies here: Executor Trustee of the residuary estate Any residuary beneficiary (whether taking absolutely or for life) or if there is a partial intestacy, a beneficiary of the estate under intestacy PRs of anyone other than a trustee or life tenant of the residue Any other beneficiary or a creditor PRs of any beneficiary or creditor
32
What rules apply to applications under NCPR Rule 20?
A person in a lower category cannot apply if someone in a higher category is able and willing to act as administrator Those in the same category have an equal right to apply Must clear off those in higher categories, but no need for same category.
33
What happens if one of two residuary beneficiaries applies for the grant?
Applicant must clear off: - No trustee of the residue is appointed - Confirming sole appointed executor has pre-deceased - No need to clear of any fellow residuary beneficiaries.
34
List in order the priority to the administratorship of estate under NCPR Rule 22
Surviving spouse or civil partner Children of the deceased, or their descendants (if a child predeceased) Parents of the deceased Siblings of the whole blood, or their descendants (if a sibling predeceased) Siblings of the half blood, or their descendants Grandparents Uncles and aunts of the whole blood, or their descendants Uncles and aunts of the half blood, or their descendants Bona vacantia
35
What conditions apply to eligibility under the NCPR rule 22?
For all categories, you must already be beneficially entitled under the intestacy rules Must clear off anyone with a better right to apply Spouse must survive deceased by 28 days PR of any applicant who survived the deceased but died before taking a grant may apply on their behalf although an application by a living person within the same category is preferred
36
When is an administrator unable to act?
Lacking capacity Minor - can get someone to apply on your behalf, but application by an adult with equal entitlement would be given priority
37
How many administrators are needed?
Only one, unless there are minor or life interests in which case two are needed Max of four Can be from different categories of NCPR 22
38
What can executors do if they are unwilling to act?
Renunciation Reserving power Appointing an attorney
39
How can an executor renunciate their role?
Signing a form of renunciation Those who apply for grant will submit form to Probate Registry as evidence of why an executor appointed by will is not making the application. Renunciation noted on the grant when it is issued. Final
40
When is an executor unable to renunciate a grant?
Once they have intermeddled
41
What constitutes intermeddling?
Taking steps to indicate you have accepted appointment and are fulfilling your duty to administer estate NOT arranging a funeral, taking steps to secure estate assets
42
If you have intermeddled, can you still reserve power as an executor?
Yes
43
How can an executor delegate functions?
Power given by an executor to an attorney called power of attorney Can be delegated for a maximum of 12 months Can be renewed with notice given to the other executors Power of attorney must be provided to the Probate Registry as part of the application
44
What happens if no executors are willing to act?
No grant issues Administrator appointed under NCPR 20
45
What options are available to administrators who are unwilling to act under NCPR 20 / 22?
Renounce Appoint an attorney Cannot reserve powers
46
What happens if an administrator renunciates?
This is final Form signed and submitted to the probate registry Can renounce even if has intermeddled. Executor who renounces has not automatically renounced as administrator - may need to do so on both fronts.
47
How can an administrator appoint a power of attorney?
Power can be given by the administrator to the attorney After administrator has been appointed: PR may delegate their functions to an attorney for maximum of 12 months (can be renewed if needed), with notice given to other administrators  once appointed the attorney can carry out administrative steps on behalf of the donor Before a grant has been obtained: applicant is delegating the power to apply for a grant, permitted under Rule 33 NCPR
48
What can be done if an eligible PR both refuses to act and refuses to renounce?
Possible to obtain a court direction to: Require a person to take out a grant Remove their right to apply Authorise another person to take on the administration
49
What is the grant?
A court order confirming the authority of those named in it to administer the estate
50
How can you submit an application to the Probate Registry?
Complete and post a paper application form Submit an online application form via HMCTS service
51
When MUST an application be made online?
Most grants of probate
52
When is an online application possible, but not mandatory?
Some simple applications under NCPR 20 and 22 - sole applicants, no minority or life interests
53
When is a paper application mandatory?
Non-standard grants More complex applications under NCPR 20 / 22
54
When must paper form PA1A be used?
If the deceased did not leave a valid will
55
When should paper form PA1P be used?
When the deceased left a valid will
56
What should any application to the probate registry include?
Identity of deceased and applicants Justify type of grant requested and their entitlement to act as PR Information about value and IHT status of the estate
57
When an executor is applying for a Grant of probate, what should they include?
Original testamentary documents (will / codicil) Explanations of why executors name is different to any name in the will If any executor named is not applying - evidence needed e.g. death certificate, form of renunciation, etc.
58
When an administrator is applying for a grant under NCPR 20, what should they include?
Which category of application they fall within Clear off anyone with a better right Say if anyone is a minor / any life interest
59
When an administrator is applying for a grant under NCPR 22, what should they include?
Familial relationship to dead Confirm they are beneficially entitled Clear off anyone with a better right to apply If any beneficiary is a minor
60
Should IHT be paid before grant of probate?
Yes
61
Above what threshold is a fee payable to the Probate Registry?
£5,000
62
How will the probate registry provide the grant?
Number of sealed copies as requested by the PRs - number will depend on the number of assets in the estate.
63
When applying for grant - name 2 formalities that are always needed, and 5 that are required for some applications
Always: Online application / PA1A / PA1P and application fee Sometimes: original will / codicil, form of renunciation, affidavit evidence, power of attorney, certified copy of death certificate
64
When is an affidavit required when applying for the grant?
If there is something about a testamentary document that renders its validity uncertain
65
What are the legal requirements for an affidavit?
Authenticating statement, ‘Jurat’ must be: Signed by all parties and dated Completed and signed by the person witnessing (solicitor or commissioner for oaths) + name, address qualification stated Must follow immediately on from the text and not on a separate page
66
When is an affidavit of due execution needed?
Doubts about the following: - S9 Wills Act validity - Knowledge and approval - Date of will
67
When is an affidavit of alterations required?
When there are problems with the physical conditions of the will
68
What must an affidavit include if the original will is missing?
Evidence will / codicil existed / facts which rebut the presumption that the missing will was revoked during the testator’s lifetime Confirmation will / codicil was executed That document accurately records testamentary wishes of the deceased

Wills and the Administration of Estates (9 decks)

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