Grants of Representation — SQE1 FLK2 Wills and Administration of Estates

A man dies leaving a will appointing his son as executor. Without applying for a grant, the son persuades the bank to release the account balance on production of a copy of the will. He pays all of it out to the beneficiaries. Two months later a supplier presents an unpaid invoice for £18,000 for goods delivered to the deceased. He knew nothing about the debt, and the beneficiaries have spent the money. Is he personally liable? Yes.

A personal representative must pay the debts before he distributes anything. Doing it the other way round is a devastavit, a wasting of the estate, and he answers for it out of his own pocket. Grants of Representation. This is the machinery that would have protected him. Keep the son in mind.

Here is the route. What a grant is and when you need one. Then the five kinds, and how to tell which one a set of facts calls for. Then who is entitled to apply, which is where the order of priority lives. Then the application itself. Then the inheritance tax gate you have to get through first, and how people fund it.

Start with what a grant is. It is a document issued by the probate registry that authorises the personal representatives to deal with the estate. It confirms the will, if there is one, and it gives authority to collect in the assets, pay the debts and distribute what is left. Think of it as proof of title to act. Without it, banks and institutions will not release anything.

Which assets need one? Broadly, anything held in the deceased's sole name. Land registered at the Land Registry. Bank and building society accounts above the institution's own threshold. Share certificates and investments.

And which do not? Property held as joint tenants, which passes by survivorship to the survivor and never forms part of the estate to be administered. Assets held by a nominee on trust for someone else. And small holdings below an institution's threshold, which run from about £5,000 to £50,000 depending on who is holding the money.

But note the warning our son ignored. If you are not certain the asset falls outside, do not distribute. A personal representative who gets that wrong is personally liable, and the fact that a bank was willing to hand the money over is no answer at all.

Now the five grants, and the first three are the ones you will be asked about. Grant of probate: there is a valid will, and an executor named in it is able and willing to act. The grant goes to that executor and confirms the will is authentic.

Letters of administration with the will annexed: there is a valid will, but no executor is able or willing to act. Perhaps they all died first, perhaps they renounced. The will still governs who gets what. It is only the appointment that has failed, so somebody else takes the grant and administers the estate according to the will.

And plain letters of administration: there is no valid will at all, so the estate passes on intestacy and the grant goes to whoever is entitled under the intestacy rules. Three grants, and the question that separates them is not who died but what survives. A valid will and an available executor? Probate. A valid will and nobody to prove it? With the will annexed. No valid will? Letters of administration.

Two specialist grants complete the list. A grant in solemn form is made in contentious proceedings, where the validity of the will or the entitlement to the grant is disputed. The court determines it after hearing evidence. And a grant ad colligenda bona is a limited grant to preserve assets at risk of being lost before a full grant can be obtained. It authorises collection and preservation, and nothing else.

Who can apply, then. Executors named in the will come first, and a maximum of four may take the grant in respect of the same property. Where more are named, the others can have power reserved to them, which means they are left off the grant but can come forward later if they are needed.

Two categories of person cannot take a grant at all. Someone lacking mental capacity. And a minor. Where the person entitled is under 18, rule 32 of the Non-Contentious Probate Rules 1987 allows a grant for the minor's use and benefit. It is taken by a parent with parental responsibility, or a guardian. And because a minority interest has arisen, the Senior Courts Act 1981 requires a trust corporation or at least two administrators, unless the court thinks a sole administrator expedient.

Now the two orders of priority, and you need to keep them apart. Rule 20 governs a grant with the will annexed. Rule 22 governs a grant on intestacy. Same rules, different situations, and the exam will happily give you one and test the other.

Rule 20 first. After a residuary beneficiary holding on trust comes any other residuary beneficiary. Only after them come other legatees and devisees, and then creditors. Which produces a result people find counter-intuitive. A friend given the house specifically ranks below the friend given the residue, however valuable the house is. The size of the gift does not move you up the order.

Rule 22 is the intestacy order, and it follows entitlement. Surviving spouse or civil partner. Then children, and the issue of any child who died first. Then parents. Then brothers and sisters and their issue. Then grandparents. Then uncles and aunts and their issue. And finally the Crown.

So a woman dies intestate leaving a husband, two adult children of an earlier marriage, and her mother. The children write in saying they should administer their own mother's estate rather than a man who is no blood relation of theirs. It makes no difference. The spouse has first priority, and a blood relationship is not the test.

And the mechanism that makes an order of priority work is clearing off. Nobody in a lower class can take a grant until everyone above them has been cleared off, by death, by renunciation, or by citation. A creditor sits below every class of relative. So a supplier owed money by an intestate estate can eventually take a grant, but only after the family have been cleared off.

Which is not a dead end when the family simply go quiet. Where those entitled will neither apply nor renounce, the creditor cites them to accept or refuse a grant. If they do not take it, their rights cease and the creditor may apply. And separately, section 116 of the Senior Courts Act 1981 lets the court pass over an unsuitable person altogether and appoint somebody else.

The application itself is now centralised, and this has changed. Solicitors apply online. The remaining paper applications go to one central address. There is no longer a local registry to choose by reference to where the deceased lived, and no venue makes the grant come through faster.

Two personal application forms, and the letters tell you which. PA1P where there is a will, whether the grant sought is probate or letters of administration with the will annexed. PA1A where there is no will. And the application is verified by a statement of truth, which replaced the sworn oath in 2018. Making one without an honest belief in its truth is a contempt of court.

The fee, then. As of 2025 it is £300 for an estate valued over £5,000, and nothing at all for an estate of £5,000 or less. It is paid when the application is submitted.

Now the gate you have to get through before any of that. Where an inheritance tax account is required it must be delivered, and any tax due paid, before the grant will issue. So the first question is whether this is an excepted estate.

If it is not excepted, the personal representatives complete the full account, IHT400, with detailed information about assets, liabilities, lifetime gifts and exemptions. Alongside it goes IHT421, the probate summary, and HMRC then notifies the court service so the grant can issue.

If it is excepted, no inheritance tax account is delivered at all. The gross and net values are simply reported on the probate application. And this is the part that dates older textbooks: for deaths on or after 1 January 2022 the short forms were abolished. IHT205, IHT207 for foreign domiciliaries, and IHT217 for transferring an unused nil-rate band. All three gone.

So what makes an estate excepted? Two main categories. A low-value excepted estate is one whose gross value, including specified lifetime transfers of up to £250,000, is within the £325,000 nil-rate band. Or up to £650,000, where a full transferable nil-rate band is available from a predeceased spouse.

An exempt excepted estate is the more generous one. Gross value up to £3 million, where after the spouse or civil partner exemption and any charity exemption the net chargeable value falls within the nil-rate band. Limits also apply to trust property, at £250,000, and to foreign assets, at £100,000.

Work one through. A man leaves a home worth £350,000 and savings of £30,000 to his surviving wife, with no gifts, no foreign assets and no trust property. His personal representative starts filling in the full account, because the gross estate is over the nil-rate band. Wrong. Gross value £380,000, everything to the spouse, chargeable value nil. It is an exempt excepted estate, and nothing goes to HMRC at all.

Then payment, and the deadline catches people out. Inheritance tax is due six months from the end of the month in which the death occurred. Not six months from the date of death. So a man who dies on 12 March must have the tax paid by 30 September, and interest runs from that date whether or not a grant has been obtained.

Which produces the circular problem at the heart of this topic. The grant will not issue until the tax is paid. The assets cannot be touched until the grant issues. So how is the tax funded? Five routes, and you should be able to run through them.

Direct payment out of the deceased's own accounts, arranged with the bank. Payment by instalments, available for property and some business assets, over ten years with interest on the outstanding balance. The proceeds of a life policy written in trust, which sit outside the estate and can be paid to the trustees at once. A bank loan, sometimes marketed as a probate loan. Or selling assets, which is the worst option if it has to be done quickly.

Last, who actually bears the tax. The primary responsibility for calculating it, delivering the account and paying it sits with the personal representatives. The tax is a debt of the estate, to be met before anything is distributed. That is the incidence.

The burden is a different question, and it is answered by the will. A well-drafted will contains a tax clause saying which beneficiaries bear the tax on which gifts. Without one, the default rules apply. And where a specific gift attracts tax that the residue has paid, the personal representatives may be entitled to recover it from that specific beneficiary. Write down how you have allocated it, and tell the beneficiaries.

A word on how SQE1 tests this. You will not be asked to name a case or quote a rule number. You get a scenario, five answers, and one instruction: pick the best one. So learn the rules, and how they decide facts. This topic has almost no case law in it at all, which makes the provisions the pegs.

If you keep only three. Rule 20 and rule 22 of the Non-Contentious Probate Rules, because entitlement questions all come back to one of them. The excepted estate categories, because they decide whether anything goes to HMRC. And six months from the end of the month of death, because that is the deadline the examiners like to move.

Four traps the examiners set. One: the death or renunciation of an executor does not invalidate a will. It defeats the appointment and nothing else. The estate is still distributed under the will, on a grant of letters of administration with the will annexed. An answer that reaches the intestacy rules is wrong.

Two: the tax deadline runs from the end of the month of death, not from the death. Six months from a death on 12 March is 30 September, not 12 September. Interest runs from that date whether or not the grant has issued.

Three: the size of a gift does not buy priority. Under rule 20 the residuary beneficiary ranks ahead of a specific devisee, even where the specific gift is the house and the residue is modest. And there is no first-come right.

Four: an estate above the nil-rate band is not automatically a full-account estate. If everything passes to a surviving spouse or to charity, it can still be an exempt excepted estate, with a gross value of up to £3 million. Nothing is delivered to HMRC at all.

Quick check. A woman dies leaving a valid will. It appoints her husband as her sole executor and leaves her whole estate to their two adult children in equal shares. The husband died two years before her, and the will names no substitute executor. One of the children has been told that the will can no longer be given effect, and that the estate must be shared out under the intestacy rules.

Is the child right? Three candidate answers. One: yes, a will can be given effect only by an executor whom the testator appointed in it. Two: no, one of the children may be granted probate in the executor's place. Three: no, the will remains valid and letters of administration with the will annexed will be granted. Pause here if you want a moment.

The answer is three. The death of an executor before the testator does not affect the validity of the will. It defeats only the appointment. Where there is a valid will but no executor able or willing to act, the grant made is letters of administration with the will annexed. The estate is still distributed according to the will. Here, equally between the two children.

Why the others fail. One treats the executor as the source of the will's effect. He is not; he is the machinery for carrying it out. Two gets the destination right and the label wrong. Probate is the grant for an executor appointed by the will, and these children were never appointed.

Five things to take away. One: probate where an appointed executor can act. Letters of administration with the will annexed where there is a will but nobody to prove it. And plain letters of administration on intestacy. Two: rule 20 orders entitlement where there is a will, rule 22 on intestacy, and nobody lower applies until those above are cleared off.

Three: PA1P with a will, PA1A without, verified by a statement of truth, and £300 over £5,000. Four: an excepted estate delivers no inheritance tax account and reports its values on the probate application. Everything else goes on the full account. Five: the tax is due six months from the end of the month of death, and no grant issues until it is paid.

And our son with the bank account? Every one of those steps existed to stop what happened to him. Debts before beneficiaries, and a grant before anything. Next time, Administration of Estates.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.