## **Learning Outcomes**

This article outlines the need for a grant of representation, the principal types of grant, and how exam questions test these issues, including:

- Identifying when a grant of representation is required to administer an estate, with emphasis on sole-name assets, land, and financial accounts.
- Distinguishing between grants of probate, letters of administration, and letters of administration with will annexed, and matching each to common factual scenarios.
- Explaining the scope of the legal authority conferred by each type of grant and how that authority interacts with executors’ authority arising under a will.
- Recognising the main exceptions to the grant requirement, such as survivorship, small estates, nominated assets, and chattels, and applying institutional practice on thresholds.
- Applying the rules on entitlement to apply for a grant, including the priority rules under the Non-Contentious Probate Rules and limits on the number of personal representatives.
- Analysing the consequences of acting without a grant, including executor de son tort liability and the distinction between intermeddling and protective acts.
- Working through typical SQE1-style problems involving pre-grant IHT funding, limited grants (ad colligenda bona; ad litem), and cross-border estates to reinforce exam technique.

## **SQE1 Syllabus**

For SQE1, you are required to understand the need for and operation of grants of representation in estate administration, with a focus on the following syllabus points:

- the different types of grants of representation (probate, letters of administration, letters of administration with will annexed)
- the circumstances in which a grant is required to administer an estate
- the main exceptions to the need for a grant (e.g., small estates, joint property, nominated assets)
- the legal authority and responsibilities conferred by a grant
- the consequences of acting without a grant (executor de son tort)
- the order of priority for applicants for a grant
- the relevant Non-Contentious Probate Rules (NCPR), including r20 (administration with will annexed) and r22 (simple administration)
- maximum number of personal representatives who may take a grant, and special rules for minors and incapacitated persons
- limited grants for collection or litigation (ad colligenda bona; ad litem) and when they are appropriate
- inheritance tax pre-grant funding options (including HMRC’s Direct Payment Scheme) and the concept of excepted estates

## **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 type of grant is issued when a person dies intestate and is survived by a spouse and adult children?
2. Name two situations where a grant of representation is not required to deal with a deceased person's asset.
3. What is an executor de son tort, and what are the risks of acting as one?
4. Who has the first right to apply for a grant of letters of administration if the deceased leaves no spouse but is survived by two adult children?

## **Introduction**

When a person dies, their estate must be managed and distributed according to law. In most cases, this requires a grant of representation—a court-issued document that authorises one or more individuals to collect the deceased's assets, pay debts, and distribute the remainder to beneficiaries or heirs. The correct type of grant depends on whether the deceased left a valid will and who is entitled to act.

A grant is a High Court order (jurisdiction exercised by the Family Division) obtained under the Non-Contentious Probate Rules 1987. The grant proves either the validity of the will (probate or administration with will annexed) or that the deceased died without a valid will (simple administration).

Some property does not devolve on the personal representatives and so is not covered by the grant. Typical examples include assets passing by survivorship (joint beneficial ownership), death benefits under pension schemes paid at trustees’ discretion, and life policy proceeds paid under an assignment or trust.

> **Key Term: grant of representation**
> A court order authorising a person or persons to administer a deceased person's estate. It includes grants of probate and letters of administration.

## Types of grants of representation

There are three main types of grant:

- Grant of probate: Issued to the executors named in a valid will.
- Letters of administration: Issued when there is no valid will (intestacy).
- Letters of administration with will annexed: Issued when there is a valid will but no executor able or willing to act.

Each grant serves two functions: it establishes the personal representative’s authority, and it provides evidence as to the will or intestacy position. An executor’s authority arises from the will and is confirmed by probate; an administrator’s authority arises from the grant itself.

No more than four personal representatives may take a grant for the same part of the estate. Special arrangements apply where an executor is a minor or lacks capacity: a substitute grant may be made “for the use and benefit” of the minor or incapacitated person until they can act, and a successor may take a grant later (e.g., double probate).

> **Key Term: grant of probate**
> A grant issued to the executors named in a valid will, confirming their authority to administer the estate.
>
> **Key Term: letters of administration**
> A grant issued to administrators (not executors) when there is no valid will or no executor able or willing to act.
>
> **Key Term: letters of administration with will annexed**
> A grant issued to an administrator when there is a valid will but no executor able or willing to act.

### Order of entitlement where there is a valid will but no executor

If no executor is able or willing to act, entitlement to letters of administration with will annexed broadly follows the order in which beneficiaries take under the will (NCPR r20). In summary, trustees of residue rank first, followed by residuary beneficiaries, then their personal representatives, and finally other legatees or creditors. Where persons are entitled in the same degree, a grant can be made to any of them without notice to the others, subject to the registrar’s discretion. A residuary beneficiary whose interest is vested is preferred to one whose entitlement is contingent.

### Chain of representation

Where a proving executor dies, their executor may become executor of the original testator by representation, preserving continuity without a new application, provided the chain is unbroken. If the chain breaks or the administration remains incomplete without a surviving PR, a limited grant de bonis non may be required.

## When is a grant of representation required?

A grant is generally required to:

- collect assets held in the deceased's sole name (e.g., bank accounts, shares, property)
- sell or transfer land or property registered in the deceased's name
- prove authority to third parties (e.g., banks, investment companies, Land Registry)

Most institutions will not release significant funds or transfer assets without sight of a grant. The grant protects them from liability for releasing assets to the wrong person.

Executors have authority from death, but in practice banks, building societies, registrars and HM Land Registry will require a grant to deal with assets in the deceased’s sole name. Administrators have no authority before the grant; title vests in them on the grant (with limited “relation back” where it benefits the estate).

### **Worked Example 1.1**

**Scenario:** Tom dies leaving a will appointing his daughter as executor. He held a house in his sole name and a bank account with £50,000. The bank refuses to release the funds to the executor without a grant.

> **Answer:** The executor must obtain a grant of probate to access the bank account and transfer or sell the house.

### Land and shares

- Land Registry: A grant is required to assent or transfer registered land in the deceased's sole name.
- Share registrars: A grant is needed to register share transmissions or sell certificated holdings.
- Investment platforms: Typically demand an office copy grant and may require identity verification.

### Pre-grant funding and IHT

Some inheritance tax (IHT) must be paid before a grant issues where the estate is chargeable. HMRC’s Direct Payment Scheme enables banks/building societies to pay IHT directly to HMRC from the deceased’s account upon presentation of the appropriate IHT account (e.g., IHT400) and schedule (IHT421). If there are insufficient funds or the institution is not a scheme member, funding may be obtained from a beneficiary or via a short-term loan secured by an undertaking to repay from estate assets once the grant issues.

> **Key Term: excepted estate**
> An estate that qualifies for simplified IHT reporting (typically where no IHT is due and the estate falls within specified criteria), allowing PRs to submit the shorter IHT form with the probate application.

## Exceptions: When is a grant not required?

There are important exceptions where a grant is not needed:

- Jointly owned property: Assets held as joint tenants (e.g., joint bank accounts, joint property) pass automatically to the surviving owner by survivorship.
- Small estates: Many banks and building societies will release funds below a set threshold (often £5,000–£50,000) on production of a death certificate and indemnity. The Administration of Estates (Small Payments) Act 1965 also permits small payments from certain institutions without a grant.
- Nominated assets: Some life policies, pension death benefits, or National Savings products may be paid directly to a nominated beneficiary.
- Certain chattels and cash: Moveable items (e.g., furniture, jewellery, cars) and cash found in the home can often be sold or transferred without formal proof, provided there is no dispute and the buyer is satisfied.

Institutions set their own thresholds and conditions for “small estates” payments. Policies vary; PRs should confirm each institution’s requirements and be aware that thresholds are not statutory for commercial banks.

> **Key Term: survivorship**
> The automatic passing of jointly owned property to the surviving joint owner(s) on death.

### **Worked Example 1.2**

**Scenario:** Mary dies leaving a joint bank account with her husband and a car in her sole name. The account contains £3,000. The car is worth £2,000.

> **Answer:** The joint account passes to her husband by survivorship without a grant. The car may be transferred without a grant if the DVLA and insurer accept the death certificate and there is no dispute.

### Co-ownership: joint tenancy vs tenancy in common

Property held as beneficial joint tenants passes by survivorship outside the grant. If the deceased held an undivided share as a tenant in common, that share forms part of the estate and a grant is needed to deal with it. Confirm the form of co-ownership (by deeds, restrictions on the title, or severance notices) before assuming survivorship applies.

### **Worked Example 1.3**

**Scenario:** Ayesha and Ben own their home. The register shows a Form A restriction indicating tenancy in common. Ayesha dies.

> **Answer:** Ayesha’s share does not pass by survivorship. A grant is required to assent or transfer her share to those entitled under her will or on intestacy.

### Insurance and pensions

- Life policies assigned or written in trust: Proceeds are paid directly to the assignee or trustees upon proof of death; no grant is needed.
- Pension death-in-service or lump sum death benefits: Often paid under trustees’ discretion on production of a death certificate; they do not pass under the grant.

## Order of priority for applicants

If there is no executor able or willing to act, the law sets out who may apply for a grant of letters of administration. The order is:

1. Surviving spouse or civil partner
2. Children
3. Parents
4. Siblings (and so on, following the intestacy rules)

Under NCPR r22, entitlement follows the statutory order of those entitled to the residuary estate on intestacy. Where two or more are equally entitled (e.g., two adult children), any may apply without notice to the others. A maximum of four may take a grant together. If there are minor beneficiaries or a subsisting life interest, two administrators (or a trust corporation) are normally required. If no beneficiary is entitled, the Treasury Solicitor may claim bona vacantia on behalf of the Crown.

For letters of administration with will annexed (NCPR r20), entitlement broadly mirrors who takes under the will: trustees of residue first, then residuary beneficiaries (including those with life interests), then their personal representatives, then other legatees or creditors. A beneficiary with a vested interest is preferred to a contingent beneficiary.

> **Key Term: administrator**
> A person appointed by the court to administer an estate where there is no executor.
>
> **Key Term: power reserved**
> Where co‑executors do not all take probate, those not proving may have “power reserved” to take a grant later if needed, without renouncing their entitlement.
>
> **Key Term: renunciation**
> A formal declaration filed at the probate registry by which a person entitled to act as personal representative gives up the right to take a grant, provided they have not intermeddled.

### **Worked Example 1.4**

**Scenario:** Rima’s will leaves residue to her two adult children and appoints her friend, Noor, as sole executor. Noor predeceases Rima. One child lives abroad; the other is local.

> **Answer:** As there is a valid will but no executor able to act, the appropriate grant is letters of administration with will annexed. The residuary beneficiaries are entitled to apply; either child may apply alone. A maximum of four may take the grant.

### Minors and incapacitated persons

A minor cannot act as an executor or administrator. Where the only executor is a minor, the court will appoint an administrator “for the use and benefit” of the minor until majority. If one co‑executor is a minor, the adult co‑executor may prove, with power reserved to the minor. Similar arrangements apply for persons lacking capacity, with attorneys or deputies acting as appropriate.

## Acting without a grant: executor de son tort

Sometimes, a person starts dealing with the estate without lawful authority (e.g., collecting rent, selling assets). Such a person is called an executor de son tort.

> **Key Term: executor de son tort**
> A person who intermeddles with a deceased's estate without authority, thereby assuming the duties and liabilities of a personal representative.

### Exam Warning

Acting as an executor de son tort exposes the person to personal liability for any loss or misapplication of estate assets.

Intermeddling includes selling or disposing of estate property, collecting debts due to the estate, carrying on the deceased’s business, or distributing assets. Acts of necessity or humanity—such as arranging the funeral, safeguarding property, or notifying banks of the death—do not amount to intermeddling. A person who has intermeddled cannot later renounce if named as executor. Liability can be mitigated by promptly delivering assets to the lawful personal representatives before a claim is brought.

### **Worked Example 1.5**

**Scenario:** After his father's death, John collects rent from a tenant and pays utility bills from the deceased's account before a grant is issued.

> **Answer:** John has acted as an executor de son tort and may be personally liable for any losses or improper payments.

### **Worked Example 1.6**

**Scenario:** Mei, a neighbour, moves the deceased’s jewellery to a safe deposit box and informs the family and the police, but makes no sale or distribution.

> **Answer:** These are protective steps and do not amount to intermeddling. Mei is not an executor de son tort.

## Practical issues and cross-border estates

Where the deceased owned assets abroad, a UK grant may need to be resealed (where available) or a separate local grant obtained. Requirements differ by jurisdiction; some will accept an apostilled UK grant, others insist on a local process.

Limited grants may be appropriate where urgent action is needed before a full grant:

- ad colligenda bona: to collect and preserve assets (e.g., where assets are at risk of deterioration)
- ad litem: to enable proceedings to be commenced or defended on behalf of the estate

> **Key Term: ad colligenda bona**
> A limited grant authorising collection and preservation of estate assets pending a full grant.
>
> **Key Term: ad litem**
> A limited grant authorising personal representatives to conduct litigation on behalf of the estate.

Personal representatives can protect themselves from unknown claims by advertising under Trustee Act 1925 s27 and delaying distribution for six months from the date of the grant to allow for any claims for reasonable financial provision.

### Revision Tip

Focus on the triggers for needing a grant, the principal exceptions, the order of priority where no executor acts, and the liabilities of intermeddling.

## **Key Point Checklist**

_This article has covered the following key knowledge points:_

- The main types of grant of representation: probate, letters of administration, and letters of administration with will annexed
- When a grant is required to administer an estate and the main exceptions (joint property, small estates, nominated assets, chattels)
- The legal authority and responsibilities conferred by a grant and how executors differ from administrators
- The order of priority for applicants for grants under NCPR r22 and r20, including limits on the number of personal representatives and special rules for minors
- The meaning and risks of acting as an executor de son tort, and acts that do not amount to intermeddling
- Practical pre-grant IHT funding and limited grants (ad colligenda bona; ad litem)
- Survivorship and co-ownership distinctions (joint tenants vs tenants in common)

## **Key Terms and Concepts**

- grant of representation
- grant of probate
- letters of administration
- letters of administration with will annexed
- survivorship
- administrator
- executor de son tort
- power reserved
- renunciation
- excepted estate
- ad colligenda bona
- ad litem


Grants of representation - Need for a grant of representation