Learning Outcomes
After reading this article, you will be able to identify when a grant of representation is required to administer a deceased person's estate, distinguish between grants of probate and letters of administration, explain the legal authority conferred by each type of grant, and recognise the main exceptions to the grant requirement. You will also be able to apply these principles to practical scenarios and avoid common errors tested in SQE1.
SQE1 Syllabus
For SQE1, you are required to understand the practical and legal significance of grants of representation. Focus your revision on:
- 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
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.
- Which type of grant is issued when a person dies intestate and is survived by a spouse and adult children?
- Name two situations where a grant of representation is not required to deal with a deceased person's asset.
- What is an executor de son tort, and what are the risks of acting as one?
- 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.
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.
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.
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.
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.
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.
- Nominated assets: Some life policies, pension death benefits, or National Savings products may be paid directly to a nominated beneficiary.
- Certain chattels: Personal possessions may be transferred without a grant if there is no dispute and the value is low.
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.
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:
- Surviving spouse or civil partner
- Children
- Parents
- Siblings (and so on, following the intestacy rules)
If there are multiple persons equally entitled (e.g., two children), any one or more may apply, but a maximum of four may take a grant together.
Key Term: administrator
A person appointed by the court to administer an estate where there is no executor.
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.
Worked Example 1.3
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.
Practical issues and cross-border estates
Where the deceased owned assets abroad, a UK grant may need to be resealed or a separate local grant obtained. Some foreign jurisdictions require a local grant even if a UK grant exists. Executors must check the requirements in each country.
Revision Tip For SQE1, focus on the practical triggers for needing a grant, the main exceptions, and the consequences of acting without authority.
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
- The legal authority and responsibilities conferred by a grant
- The order of priority for applicants for a grant of letters of administration
- The meaning and risks of acting as an executor de son tort
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
