Learning Outcomes
After studying this article, you will be able to distinguish between the main types of grants of representation in England and Wales, explain when probate or letters of administration are required, identify who may apply for each, and outline the key legal rules and practical steps for obtaining a grant. You will also be able to apply the relevant statutory provisions and rules to exam-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the types of grants of representation and their practical implications. Focus your revision on:
- the difference between a grant of probate and a grant of letters of administration
- when each type of grant is required and who may apply
- the order of priority for applicants under the Non-Contentious Probate Rules 1987
- the effect of intestacy rules on estate administration
- the legal authority and duties of executors and administrators
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.
- What is the main difference between a grant of probate and a grant of letters of administration?
- Who is entitled to apply for a grant of letters of administration if the deceased died intestate, leaving a spouse and two adult children?
- True or false? An executor named in a will can act before a grant of probate is issued.
- What happens if there is a valid will but the named executor has died before the testator?
Introduction
When a person dies, their estate must be collected, debts paid, and the remaining assets distributed to those entitled. In most cases, this process requires a grant of representation—a legal document confirming who is authorised to deal with the deceased’s estate. There are two principal types: grants of probate and grants of letters of administration. Understanding the distinction and the rules for each is essential for SQE1.
Types of Grants of Representation
The two main types of grants of representation are:
- Grant of probate: issued when there is a valid will and an executor is able and willing to act.
- Grant of letters of administration: issued when there is no valid will, or no executor is able and willing to act.
Key Term: grant of representation A court-issued document authorising a person to administer a deceased person's estate. Includes grants of probate and letters of administration.
Grant of Probate
A grant of probate is issued to the executor(s) named in a valid will. The executor’s authority to act derives from the will, but the grant is usually required to prove their status to asset holders (such as banks or the Land Registry).
Key Term: executor A person appointed in a will to administer the estate of the deceased.
Who may apply for probate?
Only the executor(s) named in the will may apply for a grant of probate. If more than one executor is named, any or all may apply, but a maximum of four can take a grant for the same estate.
What if the executor cannot act?
If the executor has died, lacks capacity, refuses to act, or is otherwise unable or unwilling, a grant of letters of administration with will annexed may be required (see below).
Authority and duties of executors
Executors are responsible for:
- collecting in the deceased’s assets
- paying debts, taxes, and expenses
- distributing the estate according to the will
They owe fiduciary duties to beneficiaries and must act honestly, diligently, and impartially.
Worked Example 1.1
A will appoints two executors, Alice and Ben. Ben has died before the testator. Alice is willing to act. Who may apply for probate?
Answer: Alice may apply for a grant of probate as the surviving executor. If Alice were unwilling or unable to act, a grant of letters of administration with will annexed would be required.
Grant of Letters of Administration
A grant of letters of administration is issued when there is no valid will (intestacy), or when no executor is able and willing to act. The person(s) entitled to apply are determined by statute and the Non-Contentious Probate Rules 1987.
Key Term: administrator A person appointed by the court to administer the estate of a deceased person where there is no executor able and willing to act.
Types of letters of administration
- Letters of administration (intestacy): issued when there is no valid will.
- Letters of administration with will annexed: issued when there is a valid will but no executor able and willing to act.
Order of priority for administrators
The order of priority for applicants is set out in Rule 22 of the Non-Contentious Probate Rules 1987. For intestacy, the order is generally:
- Surviving spouse or civil partner
- Children of the deceased
- Parents
- Siblings of the whole blood
- Further relatives as specified by statute
Key Term: intestacy The situation where a person dies without a valid will, so their estate is distributed according to statutory rules.
Duties of administrators
Administrators have similar duties to executors but must distribute the estate strictly according to the intestacy rules.
Worked Example 1.2
John dies intestate, survived by his wife and two adult children. Who is entitled to apply for a grant of letters of administration?
Answer: The surviving spouse has first priority. If she does not wish to act, the children may apply. If more than one person is equally entitled, up to four may apply jointly.
Letters of Administration with Will Annexed
If there is a valid will but no executor able and willing to act (e.g., the executor has died, lacks capacity, or renounces), a grant of letters of administration with will annexed is issued. The order of priority for applicants is set out in Rule 20 of the Non-Contentious Probate Rules 1987, with residuary beneficiaries generally having first priority.
Worked Example 1.3
A will leaves residue to two nieces but does not name an executor. Who may apply for a grant of letters of administration with will annexed?
Answer: The nieces, as residuary beneficiaries, have first priority to apply for the grant.
Practical Points and Special Situations
Acting before a grant is issued
Executors derive their authority from the will and may take some steps before probate is granted, but most institutions require sight of the grant before releasing assets. Administrators have no authority until the grant is issued.
Multiple applicants
A maximum of four people can take a grant for the same estate. If more than four are entitled, the grant will be made to the first four who apply.
Renunciation and power reserved
A person entitled to a grant may renounce their right by formal deed. If there are multiple executors or administrators, one may have "power reserved"—they do not act immediately but may apply later if needed.
Partial intestacy
If a will does not dispose of the whole estate, the undisposed assets pass under the intestacy rules, and a grant of letters of administration (with or without will annexed) may be required for those assets.
Bona vacantia
If no eligible relatives can be found, the estate passes to the Crown as bona vacantia.
Exam Warning
For SQE1, always check the facts to determine whether a will exists, whether the executor is able and willing to act, and whether the estate is wholly or partially intestate. The correct type of grant and applicant depends on these details.
Summary
| Type of Grant | When Used | Who May Apply |
|---|---|---|
| Probate | Valid will, executor able and willing to act | Executor(s) named in will |
| Letters of administration (intestacy) | No valid will | Next of kin (by statutory order) |
| Letters of administration with will annexed | Valid will, no executor able/willing to act | Residuary beneficiary or next in order |
Key Point Checklist
This article has covered the following key knowledge points:
- The two main types of grant of representation are probate and letters of administration.
- Probate is granted to executors named in a valid will; letters of administration are granted where there is no valid will or no executor able and willing to act.
- The order of priority for applicants is set by the Non-Contentious Probate Rules 1987.
- Executors and administrators have similar duties but must distribute the estate according to the will or the intestacy rules, respectively.
- Special grants (such as letters of administration with will annexed) are used in particular situations, including partial intestacy or where no executor is able to act.
Key Terms and Concepts
- grant of representation
- executor
- administrator
- intestacy
