Grants of representation - Required documentation and eviden...

Learning Outcomes

This article outlines grants of representation and the required documentation and evidence for estate administration in England and Wales. It covers the main grant types and when each is required; will validity, intestacy, and the order of entitlement; probate application forms (PA1P/PA1A) and the legal statement; inheritance tax reporting (excepted estates, IHT400, IHT421) and funding options; Registry evidential requirements (due execution, knowledge and approval, and the plight and condition of the will); caveats and citations; special and limited grants (including de bonis non and chain of representation); and the statutory duties of personal representatives under the Administration of Estates Act 1925 and Trustee Act 2000.

SQE1 Syllabus

For SQE1, you are required to understand the process and requirements for obtaining a grant of representation in England and Wales, with a focus on the following syllabus points:

• The different types of grants of representation (probate, letters of administration with will annexed, and letters of administration)
• The documentation and evidence required for each type of grant
• The legal rules for proving the validity of a will
• The order of entitlement to apply for a grant on intestacy
• The duties and responsibilities of executors and administrators in the application process
• The probate application forms PA1P (with a will) and PA1A (no will), and the legal statement (statement of truth)
• Excepted estate conditions, IHT400 reporting, and the IHT421 process
• The role of attestation clauses and when affidavit evidence is required
• Caveats and citations: purpose, effect, and procedure
• Special and limited grants (including grants de bonis non and chain of representation)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the difference between a grant of probate and letters of administration?
2. Which documents must always be submitted when applying for a grant of probate?
3. Who is entitled to apply for a grant of representation if a person dies intestate, leaving a spouse and children?
4. What is the legal test for testamentary capacity when proving a will?

Introduction

When a person dies, their estate can only be administered by someone with legal authority. This authority is conferred by a grant of representation, which allows the personal representative to collect assets, pay debts, and distribute the estate. The process for obtaining a grant is strictly regulated, and the applicant must provide specific documentation and evidence to the Probate Registry. Understanding these requirements is essential for effective estate administration and for SQE1 exam success.

Not every asset requires a grant before it can be dealt with. Some property passes outside the personal representatives’ hands (for example, by survivorship under a beneficial joint tenancy, under pension scheme discretionary death benefits, or under life policies written in trust or assigned). Modest balances may be released under the Administration of Estates (Small Payments) Act 1965 at the discretion of the institution. Nevertheless, for most estates, especially where land, substantial bank balances, or shareholdings are involved, a grant is essential.

Key Term: grant of representation
A legal document issued by the Probate Registry authorising a person to administer a deceased person's estate.

Types of Grants of Representation

There are three main types of grants of representation:

• Grant of Probate: Issued when the deceased left a valid will appointing executors.
• Letters of Administration with Will Annexed: Used when there is a valid will but no executor able or willing to act.
• Letters of Administration: Required when the deceased died intestate (without a valid will).

Key Term: grant de bonis non
A further grant made to complete administration where the original personal representative dies or is removed before finishing the administration and no chain of representation applies.

Where an executor named in the will has died after the testator, the doctrine of chain of representation may avoid the need for a fresh grant: if A is sole executor of T, and A subsequently dies testate and his executor takes a grant in A’s estate, that executor automatically becomes executor of T’s estate. If there is no chain of representation (for example, the executor died intestate or no grant was taken in the executor’s estate), a grant de bonis non may be needed.

Limited or temporary grants can also be issued in special circumstances, such as a grant pendente lite (to preserve and manage the estate while litigation over the will or a caveat is pending). These do not determine substantive entitlement but allow urgent administration to proceed.

Key Term: chain of representation
Where the executor of estate 1 dies and his own executor takes a grant in estate 2, the latter automatically becomes executor of estate 1 without a further grant.

Key Term: codicil
A formal document that amends, adds to, or partially revokes an existing will.

Required Documentation and Evidence

To obtain a grant of representation, the applicant must submit a prescribed set of documents and supporting evidence. The requirements vary depending on the type of grant sought.

In most cases today, professional applications are made online, with the original will and supporting documents sent by post. The court fee and the number of sealed office copies required should be considered; extra copies are typically needed to deal with multiple asset-holders.

Key Term: PA1P / PA1A
PA1P is the probate application form where the deceased left a will; PA1A is used when the deceased died intestate. Both include a legal statement (statement of truth).

Key Term: statement of truth
The legal statement signed by applicants confirming the information provided is true and that they will administer the estate lawfully; it replaces the old sworn oath.

The Original Will and Codicils

If the application is for probate or letters of administration with will annexed, the original will and any codicils must be lodged. The will must comply with the formalities set out in the Wills Act 1837.

Key Term: due execution
The process of signing and witnessing a will in accordance with the statutory requirements.

A properly drafted will contains an attestation clause reciting that the section 9 formalities were complied with. An attestation clause raises a presumption of due execution, so no further proof is usually needed. If the attestation clause is absent or defective, or the document’s appearance gives rise to doubt (for example, the testator’s signature is in an unusual place), the Registry will call for affidavit or witness statement evidence of due execution from an attesting witness or another person present when the will was executed.

If the original will is lost or destroyed, the applicant must provide a detailed statement explaining the circumstances and addressing the presumption that a will last traced to the testator’s possession and not found after death was revoked by destruction. A copy may be admitted to probate if the Registry is satisfied as to the will’s existence and terms and that it was not revoked.

Key Term: attestation clause
A clause at the end of a will stating that the testator signed or acknowledged the will in the presence of two or more witnesses who then signed in the testator’s presence.

Death Certificate

A certified copy of the death certificate is always required. This document officially confirms the death and is obtained from the Registrar of Births, Deaths and Marriages.

Inheritance Tax Forms

Applicants must complete and submit the appropriate inheritance tax (IHT) documentation. The precise requirements depend on whether the estate is “excepted” and on the date of death.

• For estates that are not excepted or where IHT is due, an IHT400 account is required. HMRC will process the account and, once satisfied payment arrangements are made, send form IHT421 directly to the Probate Registry, which then issues the grant.

• For qualifying excepted estates, a full IHT400 is not required. For deaths in England and Wales from 1 January 2022, most excepted estates do not need a separate IHT form; information is provided through the probate application and HMRC may request further details. Always check current HMRC guidance and the relevant regulations applicable to the date of death.

Key Term: IHT421
The HMRC “probate summary” confirming receipt of inheritance tax (or that none is due). HMRC sends this directly to the Probate Registry to allow the grant to issue.

The Probate Registry will not issue a grant until HMRC confirms that any inheritance tax due has been paid or that no tax is payable.

Key Term: excepted estate
An estate that meets statutory criteria so that no full IHT account is required and, typically, no IHT is payable.

Funding IHT before the grant can be challenging. Options include the Direct Payment Scheme (the bank or building society pays HMRC directly using form IHT423), loans from beneficiaries, or short-term bank borrowing supported by an undertaking to repay from the first available estate funds.

Statement of Truth

The applicant must provide a statement of truth confirming their entitlement to apply and their commitment to administer the estate according to law. This replaces the former oath and must include:

• The applicant’s relationship to the deceased and capacity (for example, executor or person entitled under intestacy, or attorney for the entitled person)
• Confirmation of the deceased’s details (name, date of death, domicile, and any other names in which assets were held)
• A declaration to collect and distribute the estate lawfully, pay debts and taxes, and keep proper accounts
• For probate applications, confirmation that the will and any codicils are the last testamentary documents and their dates
• For substitute or reserve executors, an explanation of why the named executor is not applying (for example, renunciation, death, lack of capacity, or power reserved)

Where minor beneficiaries are entitled or a life interest arises on intestacy, the Registry will ensure that an appropriate number of administrators are appointed (often at least two or a trust corporation).

Probate Application Forms

Applications proceed on:

• PA1P where the deceased left a will (grant of probate, or letters of administration with will annexed if no executor is able and willing to act)
• PA1A where the deceased died intestate (letters of administration)

These forms gather information about the applicants, the deceased, estate values for probate fee purposes, and IHT reporting. The legal statement is included in these forms and must be signed by all applicants.

Identification Documents

Proof of identity and address for each applicant is required. This usually includes a passport or driving licence and a recent utility bill or bank statement. Where applying as attorney for the person entitled, include the registered lasting or enduring power of attorney. If applying on behalf of an incapacitated person with no attorney, evidence of the court appointment (for example, a deputyship order) must be provided.

Additional Documentation

Depending on the circumstances, further documents may be needed:

• Renunciation Form: If a named executor wishes to renounce their role, a formal instrument of renunciation is lodged. An executor who has “intermeddled” (dealt with estate assets) cannot renounce and may need to be cited to take probate or face removal.

• Power Reserved: Where one of multiple executors does not wish to join the initial application but may act later, they may reserve power instead of renouncing.

• Evidence of Entitlement: For intestacy, documents proving the applicant’s relationship to the deceased (for example, birth, marriage, or civil partnership certificates, and adoption orders) are required.

• Affidavit or Witness Statement Evidence: If there are irregularities, the Registry may require sworn or verified statements.

Key Term: renunciation
A formal step by which a named executor gives up the right to a grant. It is generally irrevocable and cannot be made after intermeddling.

Key Term: power reserved
Where one of several executors does not prove the will but reserves the right to apply for a grant later.

Common categories of required evidence include:

• Due execution where the attestation clause is absent or defective
• The date of execution, if the will is undated or bears inconsistent dates
• Knowledge and approval, especially where the testator was blind or illiterate, signed by direction, or suspicious circumstances exist
• The will’s plight and condition (for example, staple or clip marks, tears, or obliterations), or attempted revocation
• Lost will applications explaining loss and proving contents

Caveats and Citations

Key Term: caveat
An entry at the Probate Registry preventing a grant from issuing without notice, usually to allow a potential challenge to the will or applicant’s entitlement.

Key Term: citation
A court process compelling a person with a prior right (for example, an executor) to accept or refuse a grant, or to show cause, enabling the next person entitled to proceed.

A person concerned about validity or entitlement may enter a caveat (renewable) to stop a grant while the issue is investigated. If an executor has intermeddled but refuses to apply, a citation to take probate may be issued, compelling them to proceed or lose priority. Citations are also used to “clear off” persons with prior rights who will not act.

Timing and Issue of the Grant

There is no general limitation period for applying for a grant, but as a rule the Registry will not issue a grant of probate or administration with will annexed within 7 days of death and will not issue letters of administration within 14 days of death. Delays often arise from incomplete documentation or unresolved IHT.

Proving the Validity of a Will

When applying for a grant of probate or letters of administration with will annexed, the Probate Registry must be satisfied that the will is valid.

Testamentary Capacity

The testator must have had mental capacity at the time of making the will. The legal test is set out in Banks v Goodfellow (1870).

Key Term: testamentary capacity
The mental ability required to make a valid will, including understanding the act, the property, and the claims of potential beneficiaries.

If capacity is in question, medical evidence at the time of execution (for example, a clinician’s letter) can be decisive. The rule in Parker v Felgate allows a will to be valid if the testator had capacity when giving instructions and executed in accordance with those instructions while understanding they were executing the will previously settled.

Knowledge and Approval

The testator must know and approve the contents of the will. If there are suspicious circumstances (for example, a major beneficiary prepared the will), the burden is on the applicant to prove knowledge and approval. The presumption of knowledge and approval does not apply where the testator was blind or illiterate or signed by direction. In such cases, the Registry usually requires evidence that the will was read over to and understood by the testator, ideally reflected in a tailored attestation clause and supported by witness evidence.

Key Term: knowledge and approval
The requirement that the testator understood and agreed to the contents of the will at the time of execution.

Absence of Undue Influence

The will must be made freely, without coercion or undue influence. If undue influence is alleged, evidence must be provided to refute such claims. The standard is high; mere persuasion is not enough—there must be coercion overbearing the testator’s free will.

Key Term: undue influence
Improper pressure or coercion that overcomes the free will of the testator when making a will.

Proper Execution

The will must comply with section 9 of the Wills Act 1837:

• In writing
• Signed by the testator (or by someone else in their presence and by their direction)
• Signed or acknowledged by the testator in the presence of two or more witnesses present at the same time
• Signed by the witnesses in the presence of the testator

Key Term: due execution
The process of signing and witnessing a will in accordance with the statutory requirements.

Privileged wills (for soldiers on actual military service and mariners at sea) are exempt from section 9 formalities, but the testator must intend the statement to dispose of property after death.

Where alterations appear on the will, unsigned and unwitnessed alterations are presumed to have been made after execution and ignored for probate unless evidence shows they were made before execution. The Registry may require an affidavit explaining the will’s “plight and condition” if there are staple holes, tears, or signs of attempted destruction.

Key Term: plight and condition
The physical state of the will when found (for example, torn, staple marks, scorch marks), potentially affecting assumptions about revocation or alteration.

Worked Example 1.1

A will bears two dates one week apart. The testator’s signature is on the last page, and both witnesses signed, but the attestation clause is minimal. The Registry queries the date and execution. What evidence may be required?

Answer:
The Registry can require affidavit or witness statement evidence of due execution (preferably from an attesting witness) and of the date of execution. If consistent, the later date at the end will usually be accepted. If evidence is unsatisfactory, probate may be refused until clarified.

Intestacy and Order of Entitlement

If the deceased died without a valid will, the estate is distributed according to the intestacy rules. The law prescribes a strict order of priority for who may apply for a grant of letters of administration.

Key Term: intestacy
The situation where a person dies without leaving a valid will.

The order of entitlement broadly follows the order of those entitled to share in the estate. Key points include:

• Surviving spouse or civil partner has priority
• Then the children of the deceased (including adopted children) and the issue of any predeceased child by representation
• Then parents
• Then siblings of the whole blood (followed by their issue), then half-blood siblings (followed by their issue)
• Then grandparents
• Then uncles and aunts of the whole blood (and their issue), then of the half blood (and their issue)
• If none, the estate passes to the Crown as bona vacantia; the Treasury Solicitor may act

Stepchildren and unmarried partners are not entitled under the intestacy rules.

Where a minor is beneficially entitled or a life interest arises on intestacy, a grant must be made either to at least two administrators or to a trust corporation. Persons with prior rights who do not wish to act should be cleared off by renunciation, power reserved, or citation.

Key Term: bona vacantia
Ownerless property that passes to the Crown when there are no entitled relatives.

Worked Example 1.2

Scenario: John dies intestate, survived by his wife and two children. Who is entitled to apply for a grant of representation?

Answer:
John's wife has the primary right to apply for letters of administration. If she does not wish to act, the children may apply.

Worked Example 1.3

The deceased died intestate leaving no spouse, two adult sons, and a surviving mother. One son lives abroad and does not wish to act. Who applies, and how is the non‑acting son dealt with?

Answer:
The sons are equally entitled to a grant. One son can apply alone, with his brother’s entitlement cleared off by power reserved or renunciation. The mother has a lower priority and would only apply if both sons are cleared off.

Duties of Executors and Administrators

The personal representative (executor or administrator) must:

• Collect and safeguard the assets
• Pay debts and liabilities, including taxes
• Distribute the estate according to the will or intestacy rules

Failure to perform these duties can result in personal liability.

These obligations are reflected in section 25 of the Administration of Estates Act 1925 and the duty of care under the Trustee Act 2000. PRs must take reasonable care and skill when investing or preserving assets, obtain appropriate valuations, insure property where prudent, and keep full accounts. Advertising for claims under section 27 of the Trustee Act 1925 protects against unknown creditors if PRs wait the specified period before distributing. To reduce the risk of liability under the Inheritance (Provision for Family and Dependants) Act 1975, PRs commonly wait at least six months from the date of the grant (and a short further period) before distributing or they retain a reserve.

A sole PR has the same powers as multiple PRs, but all PRs must join in transferring land and shares. If a sole or last surviving PR dies before completing the administration, either the chain of representation may operate or a grant de bonis non will be necessary to complete the administration.

Worked Example 1.4

Scenario: Alice is named as executor in her aunt’s will but wishes to renounce the role. What must she do?

Answer:
Alice must complete a renunciation form and submit it to the Probate Registry. The next entitled person (e.g., a residuary beneficiary or substitute executor) may then apply. Renunciation is generally irrevocable and cannot be made after intermeddling.

Worked Example 1.5

An executor abroad is willing to let the UK-based executor proceed but might act later. Should they renounce?

Answer:
No. If they may act later, they should reserve power rather than renouncing. The UK-based executor applies for probate with power reserved to the co‑executor.

Worked Example 1.6

A nephew believes the deceased lacked capacity when making the will leaving most of the estate to a carer. He wants to stop the grant issuing while he investigates. What procedural step is available and what is its effect?

Answer:
He may enter a caveat at the Probate Registry. This prevents a grant issuing without notice, allowing time to investigate and, if necessary, commence contentious probate proceedings or negotiate resolution.

Exam Warning

The Probate Registry will not issue a grant if any required document is missing or if there are doubts about the will’s validity. Always check that all documentation is complete and that the will complies with statutory formalities.

Revision Tip

For SQE1, memorise the order of priority for grants on intestacy and the essential documents required for each type of grant.

Key Point Checklist

This article has covered the following key knowledge points:

• The three main types of grants of representation and when each is required
• The core documentation and evidence needed for each type of grant
• The legal requirements for proving the validity of a will
• The statutory order of entitlement to apply for a grant on intestacy
• The duties and responsibilities of executors and administrators in the application process
• How to complete PA1P/PA1A with a compliant legal statement (statement of truth)
• When IHT400, IHT421, and excepted estate rules apply, and how to fund IHT before the grant
• When the Registry will require affidavit evidence (due execution, knowledge and approval, date, and plight and condition)
• How caveats and citations affect the issue of a grant and how to “clear off” persons with prior entitlement
• The use of renunciation and power reserved, and when a grant de bonis non or chain of representation arises

Key Terms and Concepts

• grant of representation
• PA1P / PA1A
• statement of truth
• codicil
• attestation clause
• testamentary capacity
• knowledge and approval
• undue influence
• due execution
• plight and condition
• IHT421
• excepted estate
• caveat
• citation
• renunciation
• power reserved
• grant de bonis non
• chain of representation
• intestacy
• bona vacantia