Obtaining The Grant Of Representation
When considering applying for the Grant of Representation, the first thing to do is to check whether the deceased had a Will in place on their death.
Finding The Will
It should not be assumed that the deceased passed away without a Will. You should undertake the following tasks before proceeding: -
1. A thorough search of the deceased’s residence.
2. Contacting their solicitor or local solicitors in the area to see if a Will is held.
3. Putting a notice in the London Gazette requesting information about any Will.
4. An application to search any registers of Wills (commercial or otherwise).
If you have exhausted all of the options above then you are able to proceeding on the basis of intestacy.
Passing Away With A Will In Place
If the deceased had a Will, it will appoint one or more executors. The executors are the people who are legally responsible for dealing with all of the deceased’s property. They become legally responsible from the moment of death. The Probate Registry grants the right to do this by a document called a Grant of Probate.
Grant of Probate
The purpose of obtaining a Grant of Probate is to prove the Will officially and to confirm the executors named in the Will so that they can administer the assets in the estate. The original Will is deposited at the Probate Registry with a legal statement signed by the executors in which they set out the facts of the deceased and that they are the Executors named in the Will. The Registry scrutinises the Will and the statement. If satisfied, the Will is filed at the Registry and a Grant of Probate is issued to the Executors. This is the official document confirming the appointment.
Executorship is a serious responsibility, but it is not compulsory. Anyone who does not wish to act as an Executor may renounce their Executorship. Renunciation is final and cannot be retracted once made. An Executor who wants to renounce must not start dealing with any property of the estate.
The term "intermeddling" is used to describe actions carried out by an individual who appears to accept the role of a personal representative even if that individual is not entitled to that role or does not wish to act in that capacity.
This can be actions such as:
- Selling assets of the deceased.
- Collecting debts due to the deceased and issuing receipts for their payment.
- Paying debts.
- Carrying on a business of the deceased.
- Disposing of the deceased's chattels.
As a result of this apparent acceptance, the individual runs the risk of being liable for their actions in respect of the estate.
Alternatively, one or more of the executors may choose to become non-proving executors. They remain Executors but do not take part in the application for the Grant of Probate. This frequently happens where on of the Executors is living abroad, or if there are three of four Executors and it is felt that it would be unnecessarily expensive and time consuming to circulate documents and forms to all of the Executors for signature. If ‘non-proving’ they are not named as Executors in the Grant of Probate and do not sign any documents. However, they may apply to the Court to be included if they think that this is necessary.
Passing Away Without A Will In Place
If the deceased died without a Will then this is known as intestacy and the closest family members to the deceased will be entitled to apply to administer the estate and to share in it. The Probate Registry grants the right to do this by a document called Letters of Administration.
Letters of Administration
The purpose of obtaining letters of administration is to grant the appropriate individual(s) permission to administer the assets in the estate.
It is then the responsibility of the administrators to gather information about the deceased’s estate, making note of all of their assets and liabilities such as property, money in the bank, cash at the property, assets, investments, life insurance policies, pensions, mortgages, loans, monies owed to or from utility companies etc.
It takes approximately 8 - 12 weeks for the Grant to be issued by the probate registry from when the application is submitted.