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Procedural table—caveat

Procedural table—caveat Action Form No Non-Contentious Probate Rules 1987 (NCPR 1987), SI 1987/2024 (as amended) Caveat is entered Caveat application online or Form PA8A (available in the forms tab of the Probate actions subtopic) NCPR 1987, SI 1987/2024, r 44(2) Caveator enters caveat at Principal Registry of the Family Division or a district probate registry by post, electronic means or attending personally themselves or by instructing a solicitor. NCPR 1987, SI 1987/2024, r 44 Fee: £3 (if the caveat is entered electronically, this must be paid electronically). Name of deceased entered in index of caveats. NCPR 1987, SI 1987/2024, r 44(4) The caveat remains in force, except as otherwise provided, for six months from entry. NCPR 1987, SI 1987/2024, r 44(3)(a) The index of caveats is searched NCPR 1987, SI 1987/2024, r 44(4) On receipt of application for grant in the registry at which the application is made or of notice of application of grant made in any other...

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Administrator (entitlement to grant)—flowchart

Administrator (entitlement to grant)—flowchart This flowchartdeals with the position where an individual dies with a Will which cannot be administered because there are no executors available to act, perhaps because none were appointed in the Will or where those appointed have predeceased or are unable or incapable of acting. In such a circumstance an administrator needs to be appointed to administer the estate with a grant of letters of administration with Will annexed. Such

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Entitlement to a grant for a non-domiciled testator

STOP PRESS: From 18 January 2024, customers applying for probate in England and Wales no longer need to complete an IHT421 probate summary to submit with the IHT400 account.  Under a new procedure, HMRC now sends a letter to the PRs or their agent confirming receipt and processing of the IHT400 and provides a unique code and the details of the estate values which are needed to make a probate application to HMCTS Probate. According to HMRC’s Trusts and Estates Newsletter (March 2024), the procedure remains unchanged in Scotland and Northern Ireland. For more information, see: LNB News 18/01/2024 9, HMRC Agent update issue 116 (17 January 2024) and HMRC Trusts and Estates Newsletter (March 2024).There are various considerations for practitioners to be aware of when administering the estate of an individual who died domiciled abroad and/or with foreign assets, including the impact of their foreign domicile on the succession of the estate. For further information, see: Cross-border estates—overview. This Practice Note focuses on the procedure for applying for a...

Jurisdiction—grants in solemn form

The distinction between grants in common form and those in solemn formThe distinction between grants in common form and those in solemn form is that a common form proof of the Will is where the Will's validity is not challenged or questioned. The executor nominated by the Will or indeed, their successor or the person entitled to a grant of administration with Will annexed, presents the Will with their application form PA1P as to its contents and any required affidavits to the district probate registry. A grant is thereby issued in their name irrespective of the absence of any other interested parties.A grant of probate obtained in common form is accepted in all courts in England and Wales as conclusive evidence of the executor's title and of the formal validity and the contents of the Will—this applies equally to a grant of administration with the Will annexed. Similarly, a grant of letters of administration is accepted in all such courts as conclusive evidence of the title of the administrator as...

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Variation—deed—to insert notional Will—by statutory beneficiaries on intestacy

Variation—deed—to insert notional Will—by statutory beneficiaries on intestacy THIS DEED is made on [date] Parties 1 [Insert names of statutory beneficiaries entitled on intestacy] of [insert addresses of statutory beneficiaries entitled on intestacy] (the Statutory Beneficiaries) 2 [Insert names of administrators] of [insert addresses of administrators] (the Administrators) BACKGROUND (A) [Insert name of deceased] (the Deceased) died intestate on [insert date of death] survived by the Statutory Beneficiaries who are the Deceased’s [ [surviving spouse OR civil partner] ] [and] [[insert details of surviving relatives who are entitled on intestacy] all of full age] (B) Under the provisions contained in section 46(1) of the Administration of Estates Act 1925 the Statutory Beneficiaries are between them entitled on intestacy to the Deceased’s entire estate with [[insert name of Deceased’s surviving spouse or civil partner] entitled to the Deceased’s chattels and payment of the fixed net sum] [and] the Statutory Beneficiaries entitled to the Deceased’s residuary estate in equal shares absolutely. (C)...

Variation—deed—to insert legacy on intestacy—by statutory beneficiaries

Variation—deed—to insert legacy on intestacy—by statutory beneficiaries THIS DEED is made on [date] Parties 1 [Names of statutory beneficiaries entitled on intestacy] of [addresses] (the Statutory Beneficiaries) 2 [Name of new beneficiary of inserted legacy] of [address] (the New Beneficiary) 3 [Names of administrators] of [addresses] (the Administrators) BACKGROUND (A) [Name of deceased] (the Deceased) died intestate on [date of death] survived by the Statutory Beneficiaries who are the Deceased’s [ [surviving spouse OR civil partner] ] [and] [[details of surviving relatives who are entitled on intestacy] all of full age]. (B) Under the provisions contained in section 46(1) of the Administration of Estates Act 1925 the Statutory Beneficiaries are between them absolutely entitled on intestacy to the Deceased’s residuary estate [after the distribution of the Deceased’s chattels and payment of the fixed net sum to [name of Deceased’s surviving spouse or civil partner]]. (C) Under the provisions contained in rule 22 of the Non-Contentious Probate Rules 1987, SI...

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Where the sole executor and residuary beneficiary (A) of the testator T’s estate survives T but dies before taking a grant of probate, leaving a Will appointing B as executor of their own estate, what steps are required in order for B to administer T’s estate?

Where the sole executor and residuary beneficiary (A) of the testator T’s estate survives T but dies before taking a grant of probate, leaving a Will appointing B as executor of their own estate, what steps are required in order for B to administer T’s estate? On the basis that the sole appointed executor (A) died before taking out the grant in T’s estate and there is no surviving executor (nor a substitute executor), the chain of representation has been broken and the grant will need to be one of administration with Will annexed. See Practice Note: The chain of representation. The Non-Contentious Probate Rules 1987, SI 1987/2024, r 20 sets out the ‘Order of priority for grant where deceased left a Will’. The first person in that order is the executor (ie A) but in the absence of an executor (ie because A has died) it is necessary to scan the subsequent list to determine a surviving person who is able to apply for a grant. As noted in...

A was appointed as executor of T’s estate, but dies before completing administration of the estate. A has by their Will appointed B as their executor. Under what circumstances can B administer T’s estate?

A was appointed as executor of T’s estate, but dies before completing administration of the estate. A has by their Will appointed B as their executor. Under what circumstances can B administer T’s estate? By virtue of section 7 of the Administration of Estates Act 1925 an executor who proves their testator’s Will also becomes the executor of any Will of which their testator was the sole or last surviving proving executor. This chain of representation carries on ad infinitum. A chain of representation subsists through the proving executor of a Will and may be broken by an intestacy, the failure of a testator to appoint or properly to appoint an executor, or by an executor not proving their testator's Will. Where an executor has died testate but his executor does not prove his Will, the chain is in abeyance. If an executor does not wish to perpetuate the chain he may renounce probate but may, if he is a/the residuary legatee and devisee in trust or a/the residuary...

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Question of the week: What is the process to obtain Letters of Administration when the deceased is survived by a minor child, a mother, and a sister, with the surviving parent (father) wishing to renounce their right to administer the estate, and the mother and sister seeking to take out the Letters of Administration?

This Q&A considers the application for a grant of letters of administration by the deceased's mother and sister for the use and benefit of the deceased's minor child, where the child's surviving parent does not wish to apply for a grant.

Will set aside for lack of testamentary capacity and undue influence (Oliver v Oliver)

Private Client analysis: William Oliver died on 25 May 2018, at the age of 86 years. He was a widower, with five surviving children. The claimant, Jane, was his youngest daughter. She sought to set aside his last Will made in 2015 on the grounds that—a) it did not comply with the formalities to make a Will (see section 9 of the Wills Act 1837); and b) William lacked testamentary capacity when he made that Will; or c) the Will was procured by undue influence. The defendant, Rodney, was William's eldest surviving son and sole beneficiary of the 2015 will. He did not engage with the court process and refused to produce the original of William's penultimate Will, made in 2009. The claim was successful on the ground that William lacked testamentary capacity in 2015. The court also found that the Will was invalid on the ground of undue influence. Written by Alexandra Rogers, managing associate at Foot Anstey LLP.