Obtaining a Grant: Probate, Letters of Administration, and Caveats

Grants of Representation

Governing rules: Non-Contentious Probate Rules 1987 (NCPR 1987); Senior Courts Act 1981 s.114 (number of personal representatives and grant requirements); Administration of Estates Act 1925 (AEA 1925).

Types of Grant

| Grant | When used | |---|---| | Grant of Probate | Valid will and named executor(s) willing and able to act | | Letters of Administration (with will annexed) | Valid will but no executor, or executor cannot/will not act (NCPR 1987, r.20) | | Letters of Administration (intestacy) | No valid will (NCPR 1987, r.22) |

Priority of Entitlement to Administer (Intestacy)

Rule 22 NCPR 1987 — order of priority:

1. Surviving spouse or civil partner
2. Children (or their issue if predeceased)
3. Parents
4. Full siblings (or their issue)
5. Half-siblings (or their issue)
6. Grandparents
7. Full aunts/uncles (or their issue)
8. Half-aunts/uncles (or their issue)
9. The Crown, Duchy of Lancaster, or Duke of Cornwall (bona vacantia)

(Reflecting the intestacy order under AEA 1925 s.46 as amended by the Inheritance and Trustees' Powers Act 2014.)

The Grant Process (Non-Contentious)

1. Collect valuations of estate assets and liabilities.
2. Complete the appropriate IHT account: IHT400 (taxable/non-excepted estates) or the online HMRC excepted estate process. NB: Form IHT205 was abolished for deaths on or after 1 January 2022 by the Inheritance Tax (Delivery of Accounts) (Excepted Estates) (Amendment) Regulations 2021 (SI 2021/1167); qualifying excepted estates no longer require a separate IHT form submitted to HMRC — the information is incorporated into the probate statement of truth.
3. Pay any IHT due before the grant (HMRC must confirm receipt before the Probate Registry will issue the grant).
4. Submit the statement of truth (replacing the executor's oath following the Non-Contentious Probate (Amendment) Rules 2020, in force 6 November 2020) together with the original will (if any) to the Probate Registry.
5. Grant issued by the Probate Registry — personal representatives may then collect and distribute assets.

Effect of the Grant

• The grant is evidence of the personal representative's authority to act; it does not itself vest the deceased's property (realty vests in PRs under AEA 1925 s.1; personalty under AEA 1925 s.1 and the Administration of Estates Act 1925 generally).
• Senior Courts Act 1981 s.114 governs the number of PRs who may take a grant.
• Executor's title relates back to the date of death (the relation-back doctrine: Chadwick v Heatley (1845); Foster v Bates (1843) 12 M&W 226) — executors may ratify acts done between death and grant. Administrators have no title until the grant is made.

Caveats and Citations

• A caveat (NCPR 1987, r.44) prevents a grant being issued without the caveator being notified; it lasts 6 months and may be renewed indefinitely before expiry.
• A standing search (NCPR 1987, r.43) entitles the applicant to receive notice of any grant made within 12 months after the date of the search (renewable for further 6-month periods).
• A caveat is challenged by a Warning (NCPR 1987, r.44(5)); the caveator must enter an Appearance within 8 days of service of the Warning, failing which the caveat lapses and the caveator may not enter a further caveat without leave of the district judge or registrar (r.44(12)).

Common Exam Points

• Some assets pass outside the estate entirely regardless of the grant: property held as beneficial joint tenants (passes by survivorship), nominated assets, and life policies written in trust. Banks may release small sums informally without sight of the grant.
• An executor who has intermeddled in the estate cannot subsequently renounce probate: In the Goods of Sharman (1869); NCPR 1987, r.37.
• A grant in common form (issued without a contentious hearing) may be revoked if the will is subsequently challenged. A grant in solemn form (obtained after contested probate proceedings with all interested parties cited) is binding on those who were party or privy to the proceedings and cannot be re-opened absent fraud.

Exam tip: Distinguish executor (title from death; relation-back doctrine applies; can ratify acts done before grant) from administrator (title only from date of grant; no relation-back). This distinction is tested in limitation, liability, and asset-collection questions.