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PROBATE AND SUCCESSION INFORMATION
1. What is a Grant of Representation?
A Grant of Representation is an order issued by one of the Probate Registries of the High Court, which confirms or confers the authority of the “personal representative” (i.e. the executor or the administrators) to administer the estate of the deceased person. There are three types of Grant of Representation:
a. A Grant of Probate: This is issued to one or more of the executors named in the Will to deal with the estate. It confirms or “proves” the authority of the executors appointed by the Will.
b. A Grant of Letters of Administration with Will annexed: This is issued when there is a Will, but either there is no executor named in the Will or, alternatively, all the named executors are unable or unwilling to act as executors and to deal with the administration of the estate.
c. A Grant of Letters of Administration: This is issued when the deceased died without leaving a Will (which is known as “intestate”). The persons who obtain a Grant of Letters of Administration are known as administrators and must establish their entitlement to apply for a Grant. There is a strict order of precedence as to who is entitled to apply for Letters of Administration (i.e. Spouse, Civil Partner, Children, Parents, Brothers and Sisters).
The duty of the personal representatives is to administer the estate. This includes;
- collecting all the assets, settling all the liabilities
- exercising any available powers and discretion, and then
- distributing the rest of the estate in accordance with the terms of the Will or the rules of intestacy.
Why do you need a grant?
It is normally not possible to collect assets (apart from joint accounts which pass automatically to the survivor) or to pay liabilities of the estate out of the assets of the estate until the Grant of Representation has been obtained.
2. What is needed to obtain a Grant of Representation?
An Oath for Executors or an Oath for Administrators must be lodged at one of the Probate Registries of the High Court. The executors must say that they are the executors appointed by the Will. The administrators must establish their entitlement to take out a Grant. In both cases, the personal representatives must state the value of the gross and net estate of the person who has died, and they must swear that they will ensure that his or her property will be distributed in accordance with the law and with the Will if there is one.
You can see, therefore, that we shall need to ask you for details of all the property and all the debts or liabilities.
The property will include any house, car, furniture, savings, life insurance policies, personal possessions, jewellery and anything capable of being valued and of being transferred from one person to another.
The liabilities may include a mortgage, outstanding bills, etc and will also include the funeral expenses.
3. How is a Grant of Representation obtained?
In addition to the Oath mentioned at 2 above, it is necessary to submit an Inland Revenue account setting out all the assets and liabilities. Once the Registry accepts the papers they will issue either a Grant of Probate or a Grant of Letters of Administration as appropriate. In either case it is that document which allows the executors or administrators to administer the estate. This means, for example, that the Grant will be registered with companies in which there were shares, or with building societies or banks in which there was an account in the deceased=s sole name. After the Grant has been registered, it will be possible for the property or the money to be transferred to the personal representatives, so that they can deal with it in accordance with the terms of the Will, or in accordance with the intestacy rules if there is no Will. Of course, a final distribution of all the assets can only be made when all the liabilities, especially tax liabilities, have been ascertained and settled. This can take some time, particularly where values are uncertain and have to be agreed with the Revenue.
4. How long will this take?
The circumstances of each person are unique, so it is extremely difficult to predict at the outset how long it will take to obtain a Grant and to administer the estate. All we can say is that we shall keep in touch with you from time to time in order to tell you the position we have reached and how matters are progressing.
The Executors may consider it necessary for the Statutory Notice to Creditors to be published in The London Gazette and a local paper where the deceased lived. This is to provide the Executors, with the necessary protection under Section 27 of the Trustee Act 1925. Under the terms of the Notices any claimant/creditor has a period of 2 months from the date of the notice within which to submit a claim.
Estates which are apparently simple can prove to be complicated and take much more time than is envisaged at the outset. Similarly, a large estate may prove to be straightforward. Difficulties arise for any number of reasons.
- Typical problems which may substantially increase the time taken are:
- the need to go through and sort out numerous old papers;
- searching for details of lifetime gifts which the deceased may have made;
- difficulty in realising assets or in settling tax or other liabilities;
- difficulty in tracing beneficiaries or in dealing with beneficiaries who are under age;
- foreign property and the need to liaise with lawyers overseas;
- trusts in which the deceased had an interest;
- agricultural or business property;
- there may also be scope for tax planning and consideration of a Deed of Variation (varying the effect of the Will or the intestacy rules) to minimise tax liability.
5. Can the Will be contested?
A will can only be contested on limited grounds. In addition, certain people, for example, a spouse, a civil partner, a former spouse who has not remarried, a civil partner who has not entered into a new civil partnership, a child of the deceased or any person who immediately before his/her death was being maintained wholly or partly by the deceased (this list is not complete) can bring an action to contest the Will provided that such action is commenced within six months of the issue of the Grant of Probate. The application must prove that there was a failure by the deceased to make reasonable financial provision for him and this will depend on the value of the estate and the circumstances of the beneficiaries and the claimant at the time the claim is made.
6. The final winding-up
There comes a point at which all the assets will have been collected and all the liabilities will have been discharged. The balance of the estate will then be ascertained and can be distributed or held in trust for the beneficiaries under the terms of the Will or the rules of intestacy. Usually this does not take place until the six months period has elapsed from the Grant of Probate. Sometimes it may be longer if there is the possibility of a claim being made by a Dependant to contest the Will. If the estate or its administration is complex, then it may be possible for the personal representatives to make interim distributions to beneficiaries before the final winding-up. Prior to distribution of the funds, it will also be necessary for us to submit bankruptcy searches against all legatees and beneficiaries. Final distribution accounts will be prepared setting out full details of all monies received and all payments made. Upon approval of such accounts by the Personal Representatives and beneficiaries the final distribution will be made.