Probate and Administration Practice - Grants of representati...

Learning Outcomes

This article covers grants of representation in probate and administration practice, including:

• The main types of grants: probate, letters of administration with will annexed, and simple administration, and when each is appropriate
• Entitlement and priority rules under the Non‑Contentious Probate Rules (NCPR), clearing off prior applicants, and use of citations
• Application steps and documents (PA1P/PA1A, legal statement/statement of truth, original will/codicils, death certificate, probate fees) and common evidential affidavits (due execution, date, knowledge and approval, and plight and condition)
• Renunciation, power reserved, intermeddling, and practical implications for executors
• Special cases involving minors, incapacity, grants for the use and benefit, chain of representation, and de bonis non
• Limited grants (ad colligenda bona and pendente lite), their scope, and when to seek them
• Caveats, warnings, appearances, and their impact on grant applications
• Funding inheritance tax prior to grant, the Direct Payment Scheme, practical alternatives, and identifying excepted estates
• Identification of the proper grant type and proper applicant based on client circumstances

SQE2 Syllabus

For SQE2, you are required to understand grants of representation, including distinctions between probate and administration, entitlement and priority rules, and the use of caveats, citations, renunciation and power reserved, with a focus on the following syllabus points:

• The difference between a grant of probate and a grant of administration (with or without will annexed), and when each is appropriate.
• The order of priority of applicants under the Non‑Contentious Probate Rules (NCPR), including clearing off prior applicants and use of citations.
• Caveats: how and why they are entered, the warning procedure, and effects on the grant.
• The effect of renunciation and power reserved for executors; intermeddling and formalities for renunciation.
• Special cases: minors and incapacity; grants for the use and benefit; chain of representation and de bonis non.
• Procedural steps and documents: PA1P/PA1A, statement of truth, IHT forms (IHT205/IHT400/IHT421), affidavits, and dealing with mutilated or lost wills.
• Limited grants (ad colligenda bona, pendente lite): when to seek them and their scope.
• Funding inheritance tax prior to grant, including the Direct Payment Scheme and practical alternatives.
• The identification of the proper type of grant and proper applicant based on client circumstances, including excepted estates.

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 main difference between a grant of probate and a grant of (simple) administration?
2. If all executors named in a will renounce their right to act, who is entitled to apply for a grant of representation?
3. Can a beneficiary under a will apply for a grant if the named executors are unable or unwilling to act? Briefly explain.
4. What is the effect of an executor “having power reserved” versus “renouncing probate”?

Introduction

Obtaining a grant of representation is a key practical step following a death. The grant authorises the person(s) administering the estate—the personal representatives—to collect in the deceased’s assets, settle liabilities, and distribute according to the will or intestacy. The correct procedure and proper identification of the right applicant are essential for the grant to be effective. This article covers the main types of grants, order of application, limited and special grants, evidential requirements, and common pitfalls and practical scenarios you may encounter.

Key Term: personal representatives (PRs)
The generic term for executors (appointed by a will) and administrators (appointed by the court under a grant of administration).

Types of Grants of Representation

The law recognises three primary forms of grant:

• Grant of probate: Issued where the deceased left a valid will and appointed executors willing and able to act.

Key Term: grant of probate
A document authorising an executor appointed in a will to administer the deceased’s estate according to that will.

Key Term: executor
A person named in a valid will and empowered to administer the estate on death.

• Grant of letters of administration with will annexed: Issued when there is a valid will but no executor appointed, or appointed executors are unable or unwilling to act.

• Grant of (simple) letters of administration: Issued on an intestacy where the deceased left no valid will or no executors are able to act.

Key Term: letters of administration
A document issued to authorise a person (the administrator) to administer a deceased’s estate under the intestacy rules or where executors are unavailable.

Key Term: administrator
A person appointed under a grant of administration to deal with the estate where there is no executor.

In practice, only up to four PRs can take a grant in relation to the same property. A single executor may act alone, but where land is held on trust during administration it is often prudent to have at least two PRs. Different parts of an estate (e.g., business assets) may be administered under separate grants limited to those assets where appropriate.

Limited and special grants

Occasionally, a full grant is not immediately appropriate, or a temporary authority is needed. Three limited grants are particularly important:

• De bonis non administratis (goods not administered): made where the original PR(s) cannot complete administration—e.g., due to death or incapacity—allowing another person to finish the administration.

Key Term: de bonis non administratis
A limited grant appointing new PRs to complete administration where the original PRs have died, disappeared, or cannot continue.

• Ad colligenda bona (to collect assets): a temporary grant allowing steps to preserve or collect perishable or vulnerable assets pending the full grant.

Key Term: ad colligenda bona
A limited, mainly preservative grant enabling urgent action to prevent loss to the estate until a full grant is issued.

• Pendente lite (pending litigation): made while a dispute over the will or entitlement is being litigated; the holder administers protectively but does not distribute.

Key Term: grant pendente lite
A temporary grant pending litigation over the estate, authorising administration to protect assets but not final distribution.

These limited grants have a narrow scope and do not confer general distributive powers. They are valuable tools to manage risks where delay in obtaining a full grant would prejudice the estate.

Priority and Entitlement to Apply

Grants of Probate

The primary right to apply for a grant of probate lies with the executors appointed by the will. All named executors can apply jointly, or one or more can apply while reserving power to others (see below). If there are more named executors than the four‑person limit, the court will grant probate to up to four, usually those applying first, with power reserved to the others.

If none of the executors are able or willing to apply (due to death, minority, incapacity, or renunciation), the next applicant must seek a different type of grant—usually letters of administration with will annexed.

Grants of Administration with Will Annexed

Where executors are lacking, the NCPR prescribe the following order of priority. Higher categories must be “cleared off” before a lower‑priority applicant can proceed:

• Trustees of the residuary estate named in the will, or persons entitled thereto in trust.
• Other residuary legatee(s).
• Personal representative of a residuary legatee.
• Other legatee(s) (including pecuniary or specific legatees) and creditors.
• Personal representative of a legatee or creditor.

“Clearing off” means proving that each prior applicant is dead, renounces, lacks capacity, refuses to act after citation, or is otherwise unable to take the grant. Where persons of equal rank exist (e.g., multiple residuary legatees), a grant may be made to any one of them without notice to the others, subject to the four‑PR maximum.

Key Term: citation
A court process requiring someone with a prior right to apply either to take a grant or show cause why they will not, enabling a lower‑rank applicant to proceed.

Grants of Administration (Intestacy)

For estates without a valid will, entitlement mirrors the statutory order of beneficiaries on intestacy. In broad terms, priority is:

• The surviving spouse or civil partner.
• Children (and issue of any deceased child) of the deceased.
• Parents.
• Siblings of the whole blood (and issue of any deceased sibling of the whole blood).
• Siblings of the half blood (and issue).
• Grandparents.
• Uncles and aunts of the whole blood (and issue).
• Uncles and aunts of the half blood (and issue).

Step‑children and step‑siblings have no statutory entitlement. Where there is a minor with a beneficial interest in the estate, two administrators are generally required to overreach their equitable interests in land. As with administration with will annexed, persons of equal rank may apply without notice to one another, subject to clearing off and the four‑PR cap.

Key Term: caveat
A notice entered at the Probate Registry to stop a grant from being sealed until the caveator’s concerns are addressed; it is warned by the applicant, and the caveator must enter an appearance or the caveat will cease.

Caveats are often used where validity of the will or the suitability of an applicant is challenged. They pause the application and may lead to contentious proceedings if not resolved.

Renunciation and Power Reserved

Executors or entitled applicants may:

• Renounce: Formally abandon their right to apply; once effective, they cannot act for the estate unless renunciation is retracted before a grant is made.

Key Term: renunciation
A formal, filed document by which an entitled person abandons the right to a grant; ineffective if the person has already intermeddled.

• Power reserved: Decline to apply immediately, but retain the right to step in later, provided a grant has not been made to others up to the four‑PR limit for the same property.

Key Term: power reserved
A record on the grant that an entitled executor does not prove now but may later apply for a subsequent (double) probate to join administration.

Implications:

• Renunciation must be signed, witnessed and filed; it is typically made on the prescribed form (and is distinct for executors and those entitled to administration). Renunciation is unavailable if the person has already intermeddled—e.g., dealt with estate assets beyond mere protective steps.
• “Power reserved” avoids the finality of renunciation and allows fluidity—for instance, where one executor is abroad or temporarily unavailable.

Worked Example 1.1

Amrik dies leaving a will appointing his two children, Nia and Raj, as executors. Raj is living abroad and does not wish to act, but Nia is willing. What action should be taken?

Answer:
Nia can apply for a grant of probate as a proving executor with power reserved to Raj. Raj may later apply for double probate to join the administration, provided there is still estate to administer.

Special Cases: Incapacity, Minority, and Unwilling Applicants

• An executor who is a minor (under 18) cannot act; the grant must issue to others or, where the minor is the sole executor, to a suitable adult for the minor’s use and benefit until majority.

• An executor lacking capacity is not entitled to a grant; where appropriate, an attorney under a registered lasting power of attorney for property and affairs or a person authorised by the Court of Protection may apply for a grant for their use and benefit.

• Where all persons with better entitlement refuse or are unable to act, an applicant further down the list may seek a citation requiring higher‑priority people to take a grant or show why they cannot. If they do not respond or show cause, the lower‑priority applicant may proceed.

Worked Example 1.2

Samira dies intestate. She is survived by her husband, Younis, and their 17-year-old son. Can the son apply for a grant of administration?

Answer:
No, the son is a minor and thus cannot apply. The husband, Younis, has first priority and should apply for the grant. If a minor had been entitled, two administrators would be required.

Chain of representation and de bonis non

If a sole or last surviving executor of Estate A dies, the executor of that deceased executor’s estate (Estate B) who takes a grant of probate for Estate B will automatically become the executor of Estate A (the “chain of representation”). No de bonis non grant is needed if the chain is intact. By contrast, if administration was granted (not probate) to a person who later dies, there is no chain; a de bonis non grant may be needed to complete administration.

Application Procedure and Documents

A valid application for a grant requires:

• Correct type of grant (probate, administration with will annexed, or simple administration).
• Proper applicant(s) according to the rules above (maximum of four PRs in relation to the same property).
• Relevant documents: original will (if any) and any codicils, death certificate, application form (PA1P or PA1A) and legal statement/statement of truth, and evidence of entitlement.
• Payment of probate fees.
• Clearance of higher-priority applicants (if applicable), by renunciation, death certificate, evidence of their incapacity, or by citation if they refuse to act.

Key Term: statement of truth
The legal statement supporting the application which confirms key facts (identity, entitlement, will dates, codicils) and is signed by all applicants, replacing the sworn oath in most cases.

Evidential affidavits and special evidential issues

In simple grant applications, the legal statement is usually sufficient. Where the Registry has concerns, further evidence is required:

• Due execution: If the will lacks a sound attestation clause or execution is doubtful, an affidavit or witness statement of due execution is required, preferably from an attesting witness.

• Date: If the will is undated or bears inconsistent dates, evidence of the date of execution may be called for, often from an attesting witness.

• Knowledge and approval: If circumstances suggest the testator may not have understood or known the contents—e.g., blindness, illiteracy, language issues—an affidavit of knowledge and approval is required.

• Plight and condition: If the will bears staple/pin or tape marks, erasures, interlineations, tearing, or appears mutilated, an affidavit explaining its condition must be filed. Unsigned or unwitnessed alterations are presumed to have been made after execution and are normally disregarded unless evidence shows they pre‑date execution.

• Lost will: Where the original will cannot be found, an application may be made to admit a copy or draft, with a full account supported by evidence explaining the circumstances and rebutting the presumption of revocation by destruction where appropriate.

Key Term: excepted estate
An estate that meets prescribed conditions (e.g., below the nil rate band, spouse/charity exemption, or certain non‑domiciled cases) so that a full IHT account is not required; a short IHT return accompanies the grant application.

Inheritance Tax and pre‑grant funding

If inheritance tax is due, HMRC must confirm receipt of the amount payable before the grant will be issued (via IHT421 sent directly to the Registry). Practical funding solutions include:

• Direct Payment Scheme: Banks/building societies participating transfer funds directly to HMRC on production of IHT423.

• Borrowing from beneficiaries: A beneficiary may advance funds to pay IHT on the understanding of repayment from the estate.

• Bank loan: As a last resort, PRs may obtain a short‑term facility, typically secured by an undertaking to repay from the first realised assets.

Worked Example 1.3

Maria is entitled as sole residuary beneficiary in her uncle's will. The will names no executor. What must Maria show to obtain a grant?

Answer:
Maria applies for letters of administration with will annexed, producing the original will and demonstrating her status as residuary beneficiary. Any other person with equal or prior entitlement must renounce or be cleared off (e.g., trustees of residue if the will creates a residuary trust).

Worked Example 1.4

A will is found with several interlineations and staple holes at the top left corner, but no attestation clause. The applicant seeks probate. What evidence will the Registry likely require?

Answer:
An affidavit of due execution (ideally from a witness) and an affidavit of plight and condition explaining the staple marks and alterations. Unwitnessed alterations are presumed post‑execution and will be ignored unless evidence shows they pre‑dated execution. The staple marks must be accounted for to exclude missing testamentary documents.

Caveats and Citations: Procedural tools

Caveats prevent a grant from being issued until concerns are resolved. An applicant may “warn” a caveat; the caveator must then enter an appearance setting out their contrary interest, or the caveat ceases. The caveat may lead to contentious proceedings where issues of capacity, undue influence, or validity are raised.

Citations are used to compel a person with prior entitlement to act or be passed over. Common citations include a citation to take probate (served on a named executor who is delaying) and a citation to accept or refuse a grant (served on those entitled under the NCPR in administration scenarios).

Worked Example 1.5

A beneficiary believes the appointed executor is unsuitable and enters a caveat. The applicant warns the caveat, and the beneficiary enters an appearance citing concerns. Can the grant proceed?

Answer:
No grant will be issued until the dispute is resolved, withdrawn, or determined. The matter becomes contentious; the court will decide, or the parties will settle. The caveat prevents a grant in common form pending resolution.

Limited Grants in Practice

Worked Example 1.6

Dwyr, a fruit farmer, dies intestate. The strawberry crop must be picked within two weeks or the estate will lose £50,000. The sister entitled to apply cannot obtain a full grant in time. What can be done?

Answer:
Apply for a grant ad colligenda bona to authorise urgent preservation and sale of the perishable crop, pending a full grant of administration.

Worked Example 1.7

The sole executor of an estate dies before completing administration and left no executor in his own will. What grant is appropriate?

Answer:
An administration de bonis non should be sought to appoint a new PR to complete the outstanding administration, as there is no chain of representation through probate.

Exam Warning

For the exam, always identify the correct type of grant based on the presence or absence of a will and the executor’s availability. Watch for scenarios requiring you to determine who has the primary or next-best right to apply, and note any procedural requirements to "clear off" higher-priority individuals. Do not overlook caveats and citations, limited grants, or evidential affidavits when the Registry raises concerns.

Revision Tip

Always double-check if all appointed executors are able and willing to act. If not, ensure you discuss renunciation, power reserved, citations, and whether special or limited grants are needed to protect the estate. Confirm IHT funding arrangements and whether the estate is excepted.

Key Point Checklist

This article has covered the following key knowledge points:

• The three main types of grant: probate, letters of administration with will annexed, and simple administration (intestacy).
• Limited grants (de bonis non, ad colligenda bona, pendente lite) and when each is suitable.
• Grants of probate are for proven executors; administration with will annexed is for other will‑related applicants where executors are lacking.
• Strict priority rules apply under the NCPR; lower‑priority parties must "clear off" higher‑priority parties, using citations if necessary.
• Caveats and warnings halt grants pending resolution; appearances lead to contentious proceedings if disputes persist.
• Executors can renounce or have power reserved; renunciation requires formal filing and is barred by intermeddling.
• Minors and those without capacity cannot take a grant; grants may be made for the use and benefit of such persons, or to guardians/attorneys where appropriate.
• Application requirements: PA1P/PA1A, statement of truth, original will/codicils, death certificate, probate fee, and IHT evidence (IHT205/IHT400/IHT421).
• Evidential affidavits (due execution, date, knowledge and approval, plight and condition) and dealing with lost or mutilated wills.
• Funding IHT before grant: Direct Payment Scheme (IHT423), loans from beneficiaries or banks; understand excepted estates.

Key Terms and Concepts

• personal representatives (PRs)
• grant of probate
• executor
• letters of administration
• administrator
• de bonis non administratis
• ad colligenda bona
• grant pendente lite
• citation
• caveat
• renunciation
• power reserved
• statement of truth
• excepted estate