Grants of representation & probate procedure

WAE.06 — Grants of Representation & Probate Procedure

What a grant is. A grant of representation is the court order confirming a personal representative's (PR's) authority to collect, administer and distribute the deceased's estate. It is the document third parties (banks, the Land Registry, share registrars) require before releasing assets.

The three principal grants:

• Grant of Probate — where there is a valid will and the named executor is willing/able to act. Executor's authority derives from the will; the grant merely confirms it (so an executor can act from death; "executor de son tort" liability if a stranger intermeddles).
• Grant of Letters of Administration (with will annexed) — there is a valid will but no executor able/willing to act. Applicant is an administrator; priority set by NCPR 1987 r.20.
• Grant of Letters of Administration (simple) — total/partial intestacy. Priority set by NCPR 1987 r.22 (surviving spouse/civil partner first, then children, etc.). Authority runs only from the date of the grant.

Core distinctions to get right:

• Executor vs administrator — executor: power from will, acts from death, no limit on number; administrator: power from grant, minimum age 18, and where a life or minority interest arises (or under-18 beneficiary) a minimum of two administrators is required (or a trust corporation).
• r.20 vs r.22 — r.20 (will annexed) headed by trustee of residue / residuary beneficiary; r.22 (intestacy) headed by spouse/civil partner. Don't mix them up.

Procedure & key points:

• PRs (or a probate practitioner) apply online or by paper. The probate application requires the statement of truth, the original will, and an IHT account where one is due.
• IHT400 (full account) where there is tax to pay or the estate isn't "excepted"; otherwise no IHT account is filed for excepted estates and figures are reported directly in the probate application.
• Section 27 Trustee Act 1925 notices (London Gazette + local paper, 2-month minimum) protect PRs against unknown creditors/beneficiaries.
• Caveat (stops a grant issuing — used to challenge validity), citation (forces a reluctant person to take or renounce a grant), and renunciation (executor formally declines — but loses the right once they have intermeddled).
• Devastavit — PR personally liable for loss caused by maladministration.

Common traps: confusing the source of authority (will vs grant); forgetting the two-administrator rule on a life/minority interest; assuming an intermeddling executor can still renounce; treating the s.27 notice as protection against known claimants (it isn't).