What Is A Grant Of Representation?
In her latest Timms blog, Head of Wills and Probate Jo Robinson discusses what a Grant of Representation is…
What Is A Grant Of Representation?
A Grant of Representation is the generic term for the legal order issued by the probate court in the estate of a deceased person in England and Wales.
The grant gives legal authority to prove that the personal representative can administer the estate.
Obtaining the grant is often referred to as ‘obtaining probate’. However, there are a number of different grants that can be obtained.
Grant Of Probate
A grant of probate is obtained by the executors named in a Will or codicil. There could be one executor or a number of executors. If the primary executors are unable or unwilling to act then any replacement executors appointed in the Will or codicil can step into act.
It is important to mention that executors cannot be forced to deal with the estate – unless, of course, they have already begun to take steps to administer the estate. In this case they are said to have ‘intermeddled’ and the executor can be compelled to complete the administration of the estate.
Executors who have not intermeddled can either renounce (give up their right to administer the estate) or have power reserved to them. Having power reserved to them means that their name will not appear on the grant of representation, but they can step in at a later date to act as an executor if they so wish.
Grant Of Letters Of Administration With Will Annexed
This type of grant needs to be obtained where there is a valid reason why a grant of probate cannot be made to an executor. For example, the Will fails to appoint an executor, or the executors have already died or have renounced. Other situations where a grant of letters of administration with Will annexed may be required are where the executors appointed in the Will are minors or are incapable of applying for the grant of probate – perhaps because they lack mental capacity.
The law sets out who can apply for a grant of letters of administration with Will annexed and the provisions are found in Rule 20 Non Contentious Probate Rules 1987. Essentially, the order of entitlement to apply for the grant depends on the entitlement to the deceased’s property under the terms of the Will. In most cases, this will be the person who is entitled to the residuary estate – the pot of money that is left after the debts and any legacies have been paid.
Grant Of Letters Of Administration
Where there is no valid Will, someone will need to apply for a grant of Letters of administration and again, the law sets out who can apply. This time the provisions are found in Rule 22 Non Contentious Probate Rules 1987 and the order of entitlement follows the order of those entitled to the estate under the laws of intestacy. The order of priority is as follows:
- Surviving spouse or civil partner
- Children and issue (descendants) of the deceased
- Parents
- Brothers and sisters of the whole blood (or their issue if they are no longer alive)
- Brothers and sisters of the half-blood (or their issue if they are no longer alive)
- Grandparents
- Uncles and aunts of the whole blood (or their issue if they are no longer alive)
- Uncles and aunts of the half-blood (or their issue if they are no longer alive)
- The Treasury solicitor on behalf of the Crown
- Any creditor of the deceased
Limited And Special Guests
There are also a number of limited or special types of grant that can be applied for:
Grant Ad Colligenda Bona
This type of grant can be applied for in urgent situations to preserve assets. For example, where the deceased was a sole trader and a grant is needed to run the business until such time that a full grant can be applied for. The grant is therefore for a limited purpose and none of the other assets in the estate can be dealt with until a full grant is obtained.
Grant Durante Minore Aetate
If the executors or potential administrators are minors then this type of grant can be made to the parents or guardians of the minor for the use and benefit of the minor. Normally the grant ceases to have affect when then minor subsequently attains the age of majority.
Grant De Bonis Non Administratis
This is a second grant to the same estate and would be required if, for example, the sole or last surviving executor or administrator died or became mentally incapable before the administration of the estate has been completed. The second grant allows the applicant to complete the administration of the estate.
Cessate Grant
This is another special grant, most commonly used where a previous grant limited to time has ceased to be affective. For example, where a minor has attained the age of 18 and is now able to act themselves. They would need to apply for a cessate grant to complete the administration of the estate.
I find the different types of grants fascinating and I love the way their Latin names are still used. Throughout my career, I have applied for hundreds of grants from the Probate Registry on behalf of my clients and some can be more tricky to obtain than others! In each case you have to demonstrate, according to law, the client’s authority to act and this can sometimes involve drawing up a family tree and tracing relatives.
How Can Timms Help?
If you would like further information regarding Wills and Probate related matters, please do not hesitate to get in touch. You can contact me on 01332 364436 or via e-mail at j.robinson@timms-law.com. Alternatively, you can visit the Wills and Probate section of our website here.
