Grants of representation - Application procedures

Learning Outcomes

After reading this article, you will be able to identify the main types of grant of representation, select and complete the correct application forms, and explain the procedural steps and legal requirements for obtaining a grant of probate or letters of administration. You will also understand the supporting documentation required, inheritance tax considerations, and the statutory framework governing the process, enabling you to answer SQE1-style questions on this topic.

SQE1 Syllabus

For SQE1, you are required to understand the application procedures for grants of representation in England and Wales. In your revision, focus on:

  • the different types of grant of representation (probate, letters of administration, letters of administration with will annexed)
  • the correct use of application forms (PA1P, PA1A) and supporting documents
  • inheritance tax forms and payment requirements (IHT205, IHT400)
  • the statutory and procedural rules governing applications (Non-Contentious Probate Rules 1987, Administration of Estates Act 1925, Wills Act 1837)
  • the order of priority for applicants and the effect of renunciation or incapacity

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. Which form is used to apply for a grant of probate where the deceased left a valid will?
  2. What is the main difference between form IHT205 and form IHT400 in the probate application process?
  3. Who is entitled to apply for a grant of letters of administration if the deceased died intestate and is survived by a spouse and adult children?
  4. Name two key supporting documents that must be submitted with a grant application.

Introduction

When a person dies, their estate cannot usually be administered until a court issues a grant of representation. This legal document authorises the personal representatives (PRs)—either executors or administrators—to collect in assets, pay debts, and distribute the estate. The application process is governed by strict statutory and procedural rules, and the correct completion of forms and supporting documentation is essential for a valid grant.

Types of Grant of Representation

There are three main types of grant:

  • Grant of Probate: Issued when the deceased left a valid will appointing executors.
  • Grant of Letters of Administration: Issued when the deceased died intestate (without a valid will).
  • Grant of Letters of Administration with Will Annexed: Issued when there is a valid will but no executor able or willing to act.

Key Term: grant of representation A court order authorising a person or persons to administer the estate of a deceased individual.

Application Forms and Priority of Applicants

The correct application form depends on the circumstances:

  • Form PA1P: Used where the deceased left a valid will and probate is sought by the named executors.
  • Form PA1A: Used where there is no valid will and administration is sought by the person(s) entitled under the intestacy rules.

Applicants must provide full details of themselves (up to four applicants), the deceased, and the estate. The order of priority for applicants is set out in the Non-Contentious Probate Rules 1987 (NCPR):

  • Executors named in the will have the best right to apply for probate.
  • If there is no executor able or willing to act, or if there is no will, the NCPR and the Administration of Estates Act 1925 specify who is entitled to apply for administration, usually starting with the surviving spouse or civil partner, then children, and so on.

Key Term: Non-Contentious Probate Rules 1987 The statutory rules governing the procedure for non-contentious probate applications in England and Wales.

Inheritance Tax Forms and Payment

Before a grant can be issued, inheritance tax (IHT) requirements must be satisfied. The correct IHT form depends on the estate:

  • IHT205: Used for excepted estates (generally smaller or exempt estates).
  • IHT400: Used for larger or more complex estates, or where IHT is payable.

Applicants must:

  • Provide a full account of the deceased’s assets and liabilities.
  • Calculate and pay any IHT due before the grant is issued (except for certain assets where instalment payment is allowed).
  • Obtain a stamped receipt (IHT421) from HMRC confirming payment or exemption.

Key Term: excepted estate An estate that meets certain criteria so that a full inheritance tax account is not required.

Supporting Documentation

The following documents must be submitted with the application:

  • The original death certificate (or interim certificate).
  • The original will and any codicils (if applicable).
  • The completed IHT form (IHT205 or IHT400).
  • The completed application form (PA1P or PA1A).
  • The probate fee.
  • Any required affidavits (e.g., affidavit of due execution, affidavit of plight and condition, or affidavit of knowledge and approval) if there are irregularities or special circumstances.

If an executor or administrator is unable or unwilling to act, a renunciation form (PA15 or PA16) may be required.

Key Term: renunciation The formal refusal by a person entitled to a grant of representation to act as personal representative.

Priority and Clearing Off

If more than one person is entitled to apply for a grant, the NCPR set out the order of priority. If a person with a prior right does not wish to act, they must be "cleared off"—either by renouncing, by being passed over by the court, or by being shown to be incapable or unwilling.

Key Term: clearing off The process of accounting for persons with a prior right to a grant, usually by renunciation or court order, so that the next entitled person may apply.

Special and Limited Grants

In certain circumstances, a limited grant may be required:

  • Grant de bonis non administratis: Where the original PRs have died or are unable to complete administration.
  • Grant ad colligenda bona: To collect and preserve assets where there is urgency or dispute.
  • Grant pendente lite: Where litigation is ongoing regarding the right to a grant.

These limited grants allow for administration to a certain extent but not full distribution.

Affidavit Evidence and Special Situations

If there are irregularities, the Probate Registry may require affidavit evidence:

  • Affidavit of due execution: Where the will lacks an attestation clause or there is doubt about execution.
  • Affidavit of plight and condition: Where the will is damaged, altered, or appears to have been tampered with.
  • Affidavit of knowledge and approval: Where there are concerns about the testator's understanding of the will.

If the original will is lost, an application for probate of a copy may be made with supporting affidavit evidence.

Payment of the Probate Fee

A probate fee is payable with the application. The amount is set by the Ministry of Justice and may change from time to time. Additional fees are payable for extra copies of the grant.

After the Grant Is Issued

Once the grant is issued, the PRs have legal authority to collect in assets, pay debts, and distribute the estate. They must act in accordance with the will or intestacy rules and comply with their statutory duties.

Worked Example 1.1

Scenario:
Sarah dies leaving a valid will appointing her brother and sister as executors. Her estate is valued at £400,000. Her brother wishes to act, but her sister is unable to do so due to ill health.

Question:
Which forms should be completed, and what additional steps are required?

Answer:
Form PA1P should be completed as there is a valid will. The brother applies for probate. The sister must complete a renunciation form (PA15), which is submitted with the application. An IHT205 is used if the estate is excepted; otherwise, an IHT400 is required.

Worked Example 1.2

Scenario:
James dies intestate, survived by his wife and two adult children. His wife does not wish to act as administrator.

Question:
Who is entitled to apply for the grant, and what must be done if the wife does not wish to act?

Answer:
The wife has the first right to apply for letters of administration. If she does not wish to act, she must renounce her right (form PA16), clearing the way for the children to apply.

Exam Warning

In the SQE1 exam, pay close attention to the order of priority for applicants and the correct use of forms. If the wrong form is used or supporting documents are missing, the application will be rejected. Always check whether the estate is excepted or requires a full IHT account.

Key Point Checklist

This article has covered the following key knowledge points:

  • The main types of grant of representation and when each is used.
  • The correct application forms (PA1P, PA1A) and supporting documents required.
  • The inheritance tax forms (IHT205, IHT400) and payment requirements.
  • The statutory order of priority for applicants and the process of clearing off.
  • The need for affidavit evidence in special circumstances.
  • The effect of the grant and the duties of personal representatives.

Key Terms and Concepts

  • grant of representation
  • Non-Contentious Probate Rules 1987
  • excepted estate
  • renunciation
  • clearing off
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