Probate and Administration Practice - Grants of representati...

Learning Outcomes

After reading this article, you will be able to identify and explain the main types of grants of representation, distinguish between grants of probate and administration, understand priority rules for applicants, and outline the steps for making a valid application and handling common procedural issues. You will also learn how to advise a client on practical situations relevant to grants of representation, as tested on the SQE2 exam.

SQE2 Syllabus

For SQE2, you are required to understand how grants of representation are obtained in practice. When revising this article, pay particular attention to:

• The difference between a grant of probate and a grant of administration (with or without will annexed).
• The order of priority of applicants for each type of grant and the rules governing clearing off prior applicants.
• The effect of renunciation and power reserved for executors or applicants.
• Procedural steps for application, including required documents and dealing with issues such as incapacity, minority, or unwilling applicants.
• How to identify the proper type of grant and applicant based on a client's circumstances.

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. What is the main difference between a grant of probate and a grant of (simple) administration?
2. If all executors named in a will renounce their right to act, who is entitled to apply for a grant of representation?
3. Can a beneficiary under a will apply for a grant if the named executors are unable or unwilling to act? Briefly explain.
4. What is the effect of an executor “having power reserved” versus “renouncing probate”?

Introduction

Obtaining a grant of representation is a key practical step following a death. The grant authorises the person(s) administering the estate—the personal representatives—to collect in the deceased’s assets, settle liabilities, and distribute according to the will or intestacy. The correct procedure and proper identification of the right applicant are essential for the grant to be effective. This article covers the main types of grants, order of application, and common pitfalls and practical exam scenarios you may encounter on the SQE2.

Types of Grants of Representation

The law recognises three primary forms of grant:

• Grant of probate: Issued where the deceased left a valid will and appointed executors willing and able to act.

Key Term: grant of probate
A document authorising an executor appointed in a will to administer the deceased's estate according to that will.

Key Term: executor
A person named in a valid will and empowered to administer the estate on death.

• Grant of letters of administration with will annexed: Issued when there is a valid will but no executor appointed, or appointed executors are unable or unwilling to act.

• Grant of (simple) letters of administration: Issued on an intestacy where the deceased left no valid will or no executors are able to act.

Key Term: letters of administration
A document issued to authorise a person (the administrator) to administer a deceased's estate under the intestacy rules or where executors are unavailable.

Key Term: administrator
A person appointed under a grant of administration to deal with the estate where there is no executor.

Priority and Entitlement to Apply

Grants of Probate

The primary right to apply for a grant of probate lies with the executors appointed by the will. All named executors can apply jointly, or one or more can apply while reserving power to others.

If none of the executors are able or willing to apply (due to death, minority, incapacity, or renunciation), the next applicant must seek a different type of grant—usually letters of administration with will annexed.

Grants of Administration with Will Annexed

Where executors are lacking, the Non-Contentious Probate Rules prescribe the following order of priority for applicants:

1. Residuary legatee(s) holding in trust for others (e.g., trustees named in the will).
2. Other residuary legatee(s).
3. Personal representative of residuary legatee(s).
4. Legatee(s) (including pecuniary or specific legatees) or creditors.
5. Personal representative of legatee(s) or creditor.

All applicants in a higher category must be "cleared off" before someone lower in priority can apply. "Clearing off" typically means proving that higher-priority people have died, renounced, or failed to apply after citation.

Grants of Administration (Intestacy)

For estates without a valid will, the persons entitled to a grant are prescribed, mirroring the order of entitlement under the intestacy rules. The surviving spouse or civil partner has first priority, followed by children and then further relatives.

Applicants must demonstrate entitlement and, where others have higher or equal entitlement, those parties must renounce or be cleared off.

Renunciation and Power Reserved

Executors or entitled applicants may:

• Renounce: Formally abandon their right to apply; once effective, cannot act for the estate unless the renunciation is retracted before a grant is made.
• Power reserved: Decline to apply immediately, but retain the right to step in later if needed, provided a grant has not been made to someone else.

Implications:

• A renunciation removes all authority from the executor to act for the estate.
• Power reserved means the person retains a contingent right to act if circumstances change (e.g., another representative dies or is unable to continue).

Worked Example 1.1

Amrik dies leaving a will appointing his two children, Nia and Raj, as executors. Raj is living abroad and does not wish to act, but Nia is willing. What action should be taken?

Answer:
Nia can apply for a grant of probate as a proving executor with power reserved to Raj. Raj may later apply to join administration if he wishes while Nia is acting, unless the administration has already been completed.

Special Cases: Incapacity, Minority, and Unwilling Applicants

• An executor who is a minor (under 18) cannot act; the grant must issue to others or to a guardian until majority.
• An executor lacking capacity is not entitled to a grant; an application may be made for a grant for the use and benefit of that person.
• Where all persons with better entitlement refuse or are unable to act, an applicant further down the list may seek a citation requiring higher-priority people to take a grant or show why they cannot.

Worked Example 1.2

Samira dies intestate. She is survived by her husband, Younis, and their 17-year-old son. Can the son apply for a grant of administration?

Answer:
No, the son is a minor and thus cannot apply. The husband, Younis, has first priority and should apply for the grant.

Application Procedure and Documents

A valid application for a grant requires:

• Correct type of grant (probate, administration with will annexed, or simple administration).
• Proper applicant(s) according to the rules above.
• Relevant documents: original will (if any), death certificate, application form or statement of truth, and evidence of entitlement.
• Payment of required probate fees.
• Clearance of higher-priority applicants (if applicable), by renunciation, death certificate, or evidence of their incapacity, or by citation if they refuse to act.

Worked Example 1.3

Maria is entitled as sole residuary beneficiary in her uncle's will. The will names no executor. What must Maria show to obtain a grant?

Answer:
Maria applies for letters of administration with will annexed, producing the original will and demonstrating her status as residuary beneficiary. If other beneficiaries are equally entitled, they must renounce or be cleared off.

Exam Warning

For the exam, always identify the correct type of grant based on the presence or absence of a will and the executor’s availability. Watch for scenarios requiring you to determine who has the primary or next-best right to apply, and note any procedural requirements to "clear off" higher-priority individuals.

Revision Tip

Always double-check if all appointed executors are able and willing to act. If not, ensure you discuss renunciation, power reserved, and citations as appropriate on practice scenarios.

Key Point Checklist

This article has covered the following key knowledge points:

• The three main types of grant: probate, letters of administration with will annexed, and simple administration (intestacy).
• Grants of probate are for proven executors; administration with will annexed is for other will-related applicants.
• There is a strict order of priority for applicants; lower-priority parties must "clear off" higher-priority parties.
• Executors can renounce or have power reserved to them; this determines their ongoing rights and duties.
• Minors and those without capacity cannot take a grant.
• All applications must be supported by correct documents and proof of entitlement.

Key Terms and Concepts

• grant of probate
• executor
• letters of administration
• administrator