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Probate Corner - Article 1 - What is Probate?

When someone dies the estate administration process can often be long winded and confusing for those involved. The family members may be going through the process for the first time and may feel as though they've been thrown in at the deep end, at what is a distressing and difficult time.

The purpose of this series of articles is to try to help clients, and their advisers, navigate their way through the estate administration process by answering some of the most common questions that come up.

Frequently when someone dies the terms "probate" and "estate administration" will come up in correspondence with financial institutions. So you may see reference to a deceased individual's assets being frozen whilst they "go through probate", or an estate agent may refer to a sale as being a "probate sale". You may also see reference to the requirement for either a Grant of Probate or Grant of Representation, and in the context of identifying whose job it is to administer an estate you may see reference to the terms Personal Representatives, Executors and Administrators. These terms, often used interchangeably, can be a source of confusion when going through an estate administration process for the first time, so I'll start by addressing what these terms mean.

Identifying the Personal Representatives 

On death there will be one or more individuals who become entitled by law to administer the deceased individual's estate. In some cases that entitlement to administer the estate may fall on an organisation such as a bank or trust company, but for the purpose of this article I will focus on individuals. The individuals who have the right to deal with or "administer" the estate are the Personal Representatives or PRs for short. There are broadly three scenarios for determining who can act as the PR of an estate:

  1. If the deceased left a valid Will then in the majority of cases the Will identifies the PRs – for example naming the deceased's family members, friends or professionals advisers ("Scenario 1").
  2. In some cases the deceased may have left a Will but the Will may not name PRs, or the PRs named may no longer be able to act (for example due to death or incapacity). In those circumstances the beneficiaries of the estate will be entitled to act as the PRs ("Scenario 2").
  3. Where there is no Will then the law determines who is entitled to act as the PRs of the estate. There is a strict order of entitlement as to who can act as PRs, based on the closeness of the relationship to the deceased ("Scenario 3").

PRs appointed by a Will are known in law as Executors of the estate, whilst PRs who act under either Scenario 2 or Scenario 3 above are known in law as Administrators of the estate. This distinction has legal relevance - see below.

Grant of Representation 

Once the identity of the PRs has been established the PRs must obtain proof of their legal authority to administer the estate. Without that proof of authority the deceased's assets will remain frozen - with a few exceptions.

The PRs obtain proof of their authority to administer the estate by applying to the Court to obtain the Grant of Representation or "Grant" for short. The Grant is a single paged document, issued by the High Court of Justice, which will include details about the estate, including the names and addresses of the PRs.

Grants issued to Executors are known in law as Grants of Probate, whereas Grants issued to Administrators are known as Grant of Letters of Administration.

Once the Personal Representatives have obtained their Grant this will allow them collect in all the assets of the deceased, pay any liabilities and taxes and ultimately distribute the estate to the beneficiaries.

Can PR's act before the Grant is issued?

I am often asked whether PRs are allowed to begin administering the estate before the Court has issued the Grant. The position is not straightforward and varies, depending on whether the PRs authority arises under Scenario 1 (Executors) or under either Scenario 2 or Scenario 3 (Administrators).

If there is a Will which contains an effective appointment of Executors then the Executors named in the Will have authority, arising from the date of death, to administer the estate. Even so, a Grant will still be required in order to rubber stamp that authority and allow the Executors to take charge of the deceased's assets. This is why, for example, most banks will not release money to Executors until they have obtained the Grant. Nonetheless, the Executor's authority arises from the moment of death, meaning that certain actions can be taken before the Grant is obtained. Examples include closing bank accounts with small cash balances and selling the deceased's car.

By contrast, Administrators of an estate whose authority arises under either Scenario 2 or Scenario 3 have no authority to act until the Court issues the Grant to them.

It is important to bear in mind though that both Executors and Administrators will be entitled, pre Grant, to receive information about the assets and liabilities of the estate upon production of the death certificate. This means that those acting as Administrators are not precluded from asking the deceased's financial institutions to provide valuations of the assets, as this information is needed in every case in order for the PRs (whether acting as Executors or Administrators) to apply for a Grant.