Who is entitled to applying for a grant of representation?
After someone has died, their personal representatives have the role of administering their estate. This may involve paying inheritance tax, applying for a grant of representation and distributing the estate to the beneficiaries.
A grant of representation proves the authority of the personal representatives and may be required to deal with certain assets in the estate.
There is a valid Will:
Usually, people appoint one or two trusted individuals to act as executors under the terms of their Will. On your death, your executor must be over 18 and have mental capacity to act. Should there be multiple executors who are willing to act, then they will have to make decisions together. It is important to consider who would be suitable to complete this role and whether the people you wish to appoint would work well together.
What happens when all of the individuals appointed are unable or unwilling to act as executors?
In these circumstances, an ‘administrator’ will be entitled to apply for a ‘grant of letters of administration with Will annexed’ and the person who carries out this role is decided by a statutory order of priority.
Generally, the first in this order of priority is anybody who has been expressly appointed under the Will to hold some or all the residuary estate on trust for a beneficiary.
If there is nobody appointed in this way, or if the persons entitled are unwilling to act, then the role will instead fall to any beneficiary of the residuary estate. If the residuary beneficiaries die after the person who made the Will but before the administration of the estate has been completed, then the role falls to the deceased beneficiaries’ personal representatives.
The order of entitlement to act then passes to various beneficiaries, personal representatives or creditors of the estate. If there is more than one person entitled to act in each category, they can apply for the grant jointly. If two separate applications are made by individuals with an equal entitlement, the Grant will not be issued until one of the applications has been rejected or withdrawn.
Clearly, this order may result in individuals being entitled to act who were not originally envisaged to act and may result in disputes between multiple administrators.
There is not a valid Will
If there is no Will, the estate will be distributed according to the intestacy rules. The priority of individuals entitled to apply as administrators for a ‘grant of letters of administration’ are as follows:
- Surviving spouse or civil partner,
- Children (or, if they predeceased the intestate, their issue)
- Parents,
- Brothers and sisters (or, if they predeceased the intestate, their issue)
- Half-brothers and half-sisters (or, if they predeceased the intestate, their issue),
- Grandparents,
- Aunts and uncles (or, if they predeceased the intestate, their issue),
- Half-uncles and half-aunts (or, if they predeceased the intestate, their issue),
- The Crown,
- Creditors
All individuals in each class must be unable or unwilling to act in order for the entitlement to fall to the next class. If the individuals in a class have died after the deceased, then their own personal representative or creditors may apply for a grant over the estate.
Do you have to act as a personal representative?
If you are entitled to apply for a grant as a personal representative, you do not have to act.
If you are an administrator and you do not wish to have any involvement in the administration of the estate, you can renounce by lodging a written, signed and witnessed form at the probate registry. The entitlement will remain with the other individuals in your class, or will fall to the next class entitled to apply.
If you are an executor, you can renounce, or choose to have power reserved if another executor is appointed and able to act. There are additional considerations where an executor wishes to renounce and a solicitor will be able to advise you on this.
Making a Will can provide more certainty as to who will administer your estate after your death, and you should carefully consider who to appoint, and whether to appoint substitute executors. We can advise you about this, as well as other aspects of your Will.
If you have any questions regarding wills, or would like to discuss any other aspects of this article, please do not hesitate to contact our Private Client department or send us a contact form here.
Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.
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