What is a grant of representation?
A grant of representation is a formal court document issued by the district probate registry (part of the High Court) to the named personal representatives of the deceased. Once granted, those personal representatives can deal with the administration and distribution of the deceased’s estate.
Note that a grant is not required in the case of small estates (usually where there is up to £5,000 in cash and no property that needs a legal transfer). An original or certified copy of the death certificate may be produced instead.
What types of Grant are there?
There are two main types of grant of representation: the grant of probate, and grant of letters of administration. The term ‘personal representatives’ is the generic term for executors and administrators.
Grant of probate
A grant of probate is obtained where the deceased leaves a valid will. The will gives the executors the legal authority to deal with the estate. The grant of probate confirms that authority. The grant of probate will usually need to be produced as evidence of the executors’ authority to act on behalf of the estate and is required to, for instance, legally sell property owned in the estate’s name; access bank accounts; transfer or sell shares, and so on.
The will typically names the executor/s – those who the testator (who made the will) has chosen to deal with the estate on death. There can be up to four executors, and these can include a solicitor, and/or a firm or bank. If no executor is named in the will, or if there are no surviving executors – the nearest living relative/s of the testator can apply for the grant. Otherwise, the executors named in the will are authorised to apply for the grant. If an executor is a minor, the other executors can apply for the grant with ‘power reserved’. The minor then has the right to apply to become an executor on reaching 18.
An executor can decide they do not want to be an executor. This is called ‘renouncing probate’. However, if they have intermeddled in the estate already, the law treats them as having assumed the responsibility of an executor and they cannot then renounce probate. Intermeddling can include informing a financial institution of their customer’s death. However, arranging the deceased’s funeral does not amount to intermeddling.
Grant of letters of administration
Letters of administration are required where the deceased dies intestate (ie. without leaving a will); or where there is a will but all the gifts have failed. This grant gives the named personal representatives (‘admininistrators’) the legal authority to administer the estate in accordance with the statutory rules of intestacy.
The law sets out a strict hierarchy of those entitled to apply for the letters of administration in order as follows:
- surviving spouse or civil partner;
- children of the deceased;
- grandchildren if their parent has died before the deceased;
- parents of the deceased;
- brothers and sisters of the deceased (or their children if the parent has died before the deceased);
- half brothers and half sisters of the deceased (or their children if the parent has died first);
- uncles and aunts (and their children if their parent dies first);
- the intestate’s uncles and aunts of the half blood and their children.
Failing the above, the Treasury Solicitor can apply for the grant claiming bona vacantia on behalf of the Crown.
The grant of letters of administration is produced to show the personal representative’slegal authority to act on behalf of the estate and is needed to, for instance, legally sell property owned in the estate’s name; access bank accounts; transfer or sell shares, and so on.
Grant of letters of administration with the will annexed
This grant provides conclusive proof of the validity of the will, and gives the personal representative/s named in it the authority to administer the deceased’s estate. No one can do anything to the estate until the grant is received. In the interim, the estate falls under the jurisdiction of the Public Trustee.
There are several reasons why a grant of letters of administration with the will annexed may be applied for, including:
- the will is valid but the deceased did not appoint an executor;
- a sole executor was appointed, but they died before the testator;
- a sole executor was appointed but this has become invalid because of, for instance, divorce or death;
- a sole executor has renounced probate or has simply not taken out the grant;
- a previous grant had been issued, but the executor was not able to complete the administration of the estate (in a period of 12 months).
In these circumstances, the law sets out a strict hierarchy of those entitled to apply for the grant in order as follows:
- any residuary beneficiary holding property in trust for another person;
- any other beneficiary or any other person entitled to the residuary estate not disposed of by the will;
- the personal representative of any residuary beneficiary (except those holding property in trust for another person) or person entitled to the residue not disposed of by the will;
- any other beneficiary or a creditor of the deceased, and;
- the personal representative of a creditor of the deceased.
If there are 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 resulting dispute will need to be resolved by the district judge or registrar.