GRANT OF REPRESENTATION- FS Flashcards
(19 cards)
What is a grant of representation, and why is it important in estate administration?
A grant of representation is a legal document issued by the probate registry that confirms a personal representative’s legal authority to administer the deceased’s estate. It is needed to transfer or sell property, pay liabilities, and collect the deceased’s assets.
From where does an executor’s authority originate, and how is it legally validated?
An executor’s authority originates from the will itself, but it is legally validated and recognised through the grant of representation, which proves both their appointment and the validity of the will.
What are the two purposes served by a grant of representation in estate administration?
It (1) proves that the personal representative has legal authority to act, and
(2) confirms that the deceased’s will complies with relevant formalities and is valid.
What types of assets are covered by the Administration of Estates (Small Payments) Act 1965?
The Act applies to:
- Investments or money held in national savings or building societies
- Movable personal property (chattels) such as jewellery, furniture, cars
- Cash in the deceased’s possession (e.g., at home)
What does the Administration of Estates (Small Payments) Act 1965 allow a personal representative to do?
It allows a personal representative to distribute assets valued at £5,000 or less to beneficiaries without obtaining a grant of representation, but only where the asset type falls within the scope of the Act.
When is a grant of representation required for distributing legacies under a will?
A grant is required for any single payment or asset transfer exceeding £5,000. Payments or transfers of £5,000 or less may be made without a grant under the Small Payments Act.
Are all estate assets subject to the requirement of a grant of representation?
No. Some assets pass outside of the estate and do not require a grant. These include:
- Jointly held property
- Life insurance policies written in trust
- Pension death benefits
What is the legal implication for a personal representative who attempts to distribute a legacy of more than £5,000 without a grant?
They would be acting without legal authority, as the grant is mandatory for payments or transfers exceeding £5,000. This could expose them to legal and financial liability.
What are the three types of grant of representation, and in what circumstances is each used?
- Grant of Probate – where the deceased left a valid will and the appointed executor is able and willing to act.
- Grant of Letters of Administration with the Will Annexed – where the deceased left a valid will but no executor is able or willing to act.
- Grant of Letters of Administration – where the deceased died wholly intestate.
Under what circumstances does a minor lack capacity to act as an executor, and what grant may be issued instead?
A minor (under 18) lacks legal capacity to act as executor. If there are adult co-executors, a grant of probate with power reserved may be issued, allowing the minor to apply for double probate at 18. If the minor is the sole executor, a grant of letters of administration with the will annexed must be taken by an adult, typically the minor’s guardian.
What is a grant of double probate and when might it be applied for?
It allows a minor who was named as an executor in a will to join the administration once they reach 18, if the estate has not yet been fully administered by the adult executors.
When a sole executor named in a will is a minor, what type of grant must be taken and by whom?
A grant of letters of administration with the will annexed must be taken by an adult (usually the minor’s parent or guardian), with the endorsement “for the use and benefit of the minor.”
Can a person lacking mental capacity act as an executor, and how is representation handled in such a case?
No. A person lacking mental capacity cannot act as an executor. If they are the sole appointed executor, an attorney under a valid power of attorney may apply for the grant in their place.
What effect does divorce have on an executor’s appointment under a will made prior to the divorce?
A divorced spouse is treated as having pre-deceased the testator for the purposes of the will, and thus cannot act as an executor after the testator’s death.
Can a person who pre-deceases the testator serve as an executor, and what is the consequence?
No. A person who pre-deceases the testator cannot serve as executor. Their rights lapse, and only surviving and eligible executors can apply for the grant.
If the will names multiple executors, but only one survives with legal capacity, who has the right to apply for the grant of representation?
The surviving executor with legal capacity has the best right to apply. Others (pre-deceased or disqualified, such as an ex-spouse) have no authority to act.
What can executors do to keep a sole trader’s business running before the full grant of probate is issued?
Executors may apply for a temporary grant (also known as an administration ad colligenda bona) to enable them to preserve and manage the business until the full grant is obtained. This ensures the business can continue operating as a going concern.
What is meant by a “chain of representation” in the context of estate administration?
A chain of representation allows the administration of an estate to continue when an executor dies before completing it, provided that:
- The deceased executor left a valid will, and
- That will appoints an executor who proves the will.
This results in an unbroken line of authority, enabling the new executor to complete the administration of both estates.
What is the correct procedure an executor must follow when collecting in assets after obtaining the grant of probate?
The executor must send a copy of the grant of probate issued by the Probate Registry to each relevant organisation or person, along with a covering letter requesting the transfer of the asset. The grant provides legal authority to act on behalf of the estate. Multiple official copies (not photocopies or certified copies) should be obtained, and additional forms may be required depending on the institution.
