What is a Grant?
A grant is an order issued by the High Court authorizing the administration and distribution of the deceased’s estate. It confirms the executor’s/administrator’s/personal representative’s authority to administer to the estate and proves either the validity of the deceased’s will (in cases of probate and administration with the will annexed) or that the deceased died without a will (in cases of simple administration).
The Types of Grant and who can apply for it
The types of grant are the grant of probate, the grant of administration with the will annexed, and the grant of simple administration.
Grant of Probate
This is applied for if the deceased appointed an executor to administer to his property. The testator can appoint many executors but only four can apply for a grant at a time. If there are more than four executors, the other executors will have power reserved for them. A firm of solicitors may be named as executors but care must be given to the wording in the will because the partners at the time the will was made may not anymore be the partners at the time of the testator’s death or may be unwilling to act as executors.
Any of the executors named in the Will is authorized to take out the grant. If an executor is a minor, the other executors can apply for the grant with power reserved for the minor until he reaches 18 years of age. Once the minor reaches the age of majority, he can apply for a grant of double probate.
If a person intermeddles willingly and assumes the responsibility of the executor even if he has not been appointed by the Will becomes personally liable to the deceased’s estate. This person called the executor de son tort, is deemed to have intermeddled if he has represented himself as the executor of the estate and proceeds to pay the debts or deals with the property in the estate. Legal action may be taken against him for any wrongdoing on his part. To avoid this, it is best for this person to hand over any property of the estate he is holding to the authorized executors.
On the other hand, a person who decides to assist the bereaved family make the necessary funeral arrangements is not considered an executor de son tort.
Grant of Letters of Administration with the Will annexed
There are several reasons why a grant of probate with the will annexed is applied for.
First, the will is valid but the deceased did not appoint an executor;
Second, in situations where there is a sole executor, the sole executor might have predeceased the testator (note that an ex-spouse or ex-civil partner is also considered as having predeceased the testator on the day the divorce was made absolute or when the civil partnership was nullified. Additionally, the appointed executor may have formally renounced his right to probate;
Third, the executor may have been passed over by the courts (in instances where perhaps the appointed executor was not fit to take probate);
Fourth, the executor has not taken out a grant even after he has been cited to do so;
Fifth, a previous grant had been given but the executor was not able to complete the administration of the estate (an executors year is only for 12 months)
Rule 20 of the Non-Contentious Probate Rules 1987 (NCPR 1987) gives a list of persons authorized to take out a grant:
(Note that for another person in a lower category to be able to take out a grant, they should make sure that any of the persons within the higher categories have been considered and if there is not one that fits the category’s description only can the next category be considered)
- Any residuary legatee/devisee holding property in trust for another person; Any other residuary legatee/devisee (including one for life) or any other person entitled to the residuary estate not disposed of by the will and can also include the Treasury Solicitor if claiming bona vacantia on behalf of the Crown. The legatee/devisee who has a vested interest takes precedence over the legatee/devisee with a contingent interest in the estate. The district judge or registrar can allow a grant to be given to the person entitled to the property not disposed by the Will over family members who are entitled under intestacy rules; The personal representative of any residuary legatee/devisee (except those who are holding in trust for another person) or person entitled to the residue not disposed of by the Will; Any other legatee/devisee (including one for life or holding in trust for someone else) or a creditor of the deceased; and, The personal representative of a creditor of the deceased. Should there be two or more persons entitled in the same level, the grant can be awarded to any of them without prior notice to the other. Any dispute arising from this is settled by the district judge or registrar (r.27 NCPR 1987) The effect of this type of grant is that it provides conclusive proof of the contents and execution of the will and gives the administrator the authority to administer to the deceased’s estate.
For more information on:
- Grant of Simple Administration
- Rule 22 of the NCPR 1987 lists the categories of persons who are eligible to take out the grant: