Wills - Grant of Representation Flashcards
What is a Grant of Representation ?
The legal document required to confirm a person’s legal right to administer the estate of the deceased person
What are the assets for which a grant is not required ?
- Payments of up to £5,000 held in a National Savings Bank accounts, National Savings Certificates, Premium Bonds or building societies of the decedent merely by producing the death certificate.
- Similarly, chattels such as furniture, jewellery, clothing and cars can normally be sold by the PR merely by production of the death certificate.
- Cash
What is a Grant of Probate ?
A grant of probate is used when the deceased left a valid will appointing an executor who is willing to be a PR.
What is a letter of administration with the will annexed ?
- There is a will but problems as to the appointment of executors
- Where the will does not appoint executors, or they have all predeceased or renounced or where the will appointed the deceased’s spouse as the sole executor but they divorced before the deceased’s death.
What is a grant of (simple) letters of administration ?
If the deceased left no will, a person is entitled in serving as administrator applies for letters of administration.
Number of executors required for each grant
Grant of probate: 1 is necessary but up to 4 is permitted
Letter of administration with the will annexed: 1 is necessary, if there is a minor beneficiary 2 is necessary.
(Simple) letters of administration: 1 is necessary, if there is a minor beneficiary 2 is necessary.
Application procedure for grant
Application using Form PA1P (if there is a valid will), PA1A (if no valid will)
- 2x copies of the will,
- Official copy of the death certificate,
- A tax form (IHT400) indicating either that no IHT was payable or that IHT has been paid
- Probate court fees.
- An application for a grant of letters of administration is similar. If it includes a will that will be enclosed.
How are assets and liabilities valued ?
The valuation of assets will be calculated at their value on the open market.
What are excepted estates ?
No IHT is payable on excepted estates.
In short: Gross value of the estate plus specified transfers is less than the available NRB.
- small estates: Estates that don’t exceed the IHT nil rate band (currently £325,000). These estates are exempt, and no formal account is necessary.
- Exempt estates: This could be an estate that is worth less than £3 million, and the net chargeable estate (after deducting liabilities and any spouse or charity exemption on death) does not exceed the IHT nil rate band.
- Non-domiciled estates: Estates of deceased individuals domiciled outside the UK and had never been UK domiciled. Their estate is excepted if their estate consists solely of cash and/or quoted shares which total no more than £150,000.
Methods of funding the initial payment of Inheritance Tax
1) Direct Payment Scheme (voluntary banking scheme)
2) Assets realisable without the need of grant
3) Loans from beneficiaries
4) Bank loan
Who pays the initial IHT and when ?
- The PR’s must pay the IHT to obtain a grant.
- The basic rule is that IHT is due for payment six months after the end of the month of death
- If later interest accrues.
Ranking of entitlement to letter of administration with the will annexed
The order of preference is:
1) the trustee (if any) of the residuary estate,
2) any residuary beneficiary,
3) PRs of any residuary beneficiary,
4) any other beneficiary or creditor of the estate
5) finally the PR’s of other beneficiaries.
Ranking of entitlement to grant of simple letters of administration
The order of preference is:
(1) surviving spouse,
(2) Children,
(3) Parents,
(4) siblings
(5) grandparents.
What can a PR who does not want to be a PR do ?
Renunciation
- Persons appointed as executors may renounce/reject their right to take the grant.
- The administration of the estate proceeds as if the executor had never been appointed.
- Executors can renounce only if they have not intermeddled in the estate.
What is intermeddling ?
- Intermeddling consists of doing tasks a PR might do, for example selling the deceased’s chattels.
- By intermeddling, executors accept their appointment.
- Once executors have intermeddled, they must take the grant because they are treated as having accepted office.
Executors’ reservation of powers
If the executor does not want to act as an executor now but might act later, they may be reserve their power to the other(s) to take out a grant in the future if a vacancy arises.
Renunciation of administrators
- Renounce in the same way as an executor
- Administrator does not lose the right to renounce by intermeddling
How can the issue of a grant be prevented ?
Caveat
- Where the validity of the will is questioned.
- Once a caveat has been entered, no grant can be issued until the caveat is removed or ceases to be effective.
- A caveat lasts for six months although its duration can be extended
How to compel the issue of a grant
Citation to take probate
- Where an executor has lost his right to renounce probate by intermeddling in the estate but has not applied for a grant of probate and shows no signs of so doing.
- Once cited, the executor must proceed with an application for a grant of probate.
Citation to accept or refuse a grant
- Method of clearing off a person with a prior right to any type of grant who has not applied, and shows no intention of applying, for a grant.
- If the person cited does not take steps to take out the grant, a grant may be issued to the citor.
Citation to propound will
- A citation to propound a will (authenticate the will by obtaining a grant of probate) is used where a person becomes aware that there may be a will that would diminish their entitlement under an earlier will or under an intestacy.
- That person can cite the executors named in the later will and any persons interested under that will to propound it.
- If the citees fail to enter an appearance or to proceed diligently to propound the will, the citor can apply to the court for an order for a grant as if the will were invalid.
What is a passing over ?
- A court application to pass over a person who is unwilling to act as executor in favour of someone else.
Evidence of due execution and/or capacity
- If there is no attestation clause, or the clause is in some respect defective, or there are circumstances raising doubt about the execution of the will, HMCTS will require evidence, preferably from an attesting witness, to establish that the will has been properly executed
Evidence of plight and condition
- If the state of the will suggests that it has been interfered with in some way since execution, the registrar will require further evidence by way of explanation
