1
Q
What is the general rule on alterations to a will
A
Alterations are invalid and deemed to have been executed after the will was made but if it can be proved that it was altered at the time of execution or executed with the same formalities of a will will be accepted
2
Q
Will the original will be valid even if the alterations are invalid
A
Yes
3
Q
What should a codicils contain
A
Reference to the original will and same formalities
4
Q
How can a will be destroyed
A
Burning/tearing
Intention to destroy us needed and accident does not destroy a will
5
Q
What arises from a mutual will
A
A constructive trust
6
Q
What does not count as destruction in a will
A
Writing cancelled/striking through that’s not enough will is still valid
7
Q
Does marriage revoked a will
A
Yes but there is an exception to this that if the marriage has an express clause intending to marry a particular person that is valid
8
Q
Does divorce revoke a will
A
No but the gifts and any apts of the divorcee is invalid
9
Q
What is the presumption on capacity for a will
A
A T is presumed to have capacity unless someone challenges the will and proves otherwise
10
Q
What is a privileged will
A
Someone aged 16/17 in the armed forces or active in service or seamen can also be oral/informal no formalities needed
11
Q
What does a T need to have capacity and the case (3)
A
Banks v goodfellow
Nature of act (knew making a will)
Extent of Property
Claims which they ought to give effect (who they would normally give to even if they don’t want to)
12
Q
When is knowledge and approval not presumed and what should happen
A
Blind or illiterate or suspicious circumstances
Should have an amended attestation clause
13
Q
What is the 4 formalities for a valid will
A
In writing
Signed by T or by someone else at his direction in his presence
Signed or acknowledged by T by 2 witnesses
Each w signs in present of T
14
Q
What is needed to show intention to make a will
A
Knowledge and approval
There is a general presumption of this
15
Q
Can a w acknowledge Ts prior signature
A
Yes
16
Q
T must sign or acknowledge in presence of two witnesses true or false
A
True
17
Q
T needs both witnesses to sign together before T - true or false
A
False
18
Q
Does the witnesses need to be together to sign the will
A
No just each needs to sign in the presence of T
19
Q
Can a Beneficiary witness a will
A
They can but it invalidates their propert
20
Q
What are the words to the attestation clause
A
Signed by the T in our presence and then by us in his
21
Q
Can another document be referenced in the will
A
Yes as long as it is in existence at the time of the will
22
Q
Is it necessary for both witnesses to be present when the T signs
A
Yes but can also be when both present and in his presence when he acknowledges
23
Q
Must all three (T and x2 witnesses) be present at the time of signing or acknowledgement
A
Yes
24
Q
Can an executor be a minor
A
Yes but they cannot apply for probate
25
What does the Inheritance (Provision for Family and Dependents) Act 1975 cover
Claims by people who can argue that they have not received a 'reasonable provision' in a will or intestacy
26
What is the question under the Inheritance (Provision for Family & Dependents) Act
Was the financial result of the decision made by deceased reasonable in all the circumstances
27
When must an application be made under the I(FP)A
6 months after GOP OR LOA
28
Under the I(FP)A who can make a claim (6) automatic
S1(a)- current spouse/CP
S1(b) - former spouse/CP
S1(ba) - cohabitee (2yrs b4 death)
S1 (c) - child of deceased
S1(d) - child treated as a child
S1 (e) - anyone maintained immediately before death
All other family members excluded unless can claim under E
Adult children can but v difficult
29
Can an E witness a will
Yes
30
Under the I(PF)A there is one big exception to the Joint tenancy and survivorship rule
The court could take the JTs share in the estate if a claim is made under the act which would otherwise be excluded
31
What is the test to make an application under the I(FP)A
Reasonable financial provision test
32
What are the two standards of financial provision test I(FP)A
Maintenance standard
What is reasonably required in order to live a decent/comfortable life
Spousal standard
What is reasonavke for a husband/wife to receive to live a comfortable/decent life
33
How many days after death should the death be registered
5 days
34
Whats the process for s27 Trustee Act and what does it protect
E/Ts place Ads in LG and local newspapers stating their intention to distribute estate (2 months)
UNKNOWN beneficiaries
35
What does a Benjamin order do
And order from the court protecting The E/T if they can satisfy the court taken all steps to locate a missing B
KNOWN beneficiaries
36
What are the three key duties of PRs
Collect assets
Pay debts
Distribute
37
What are the 3 duty of cares of PRs
Statutory DOC S1 TA 2000 admin
Devastavit (no waste)
Fiduciary duty to estate and Bs
38
What is the order of the sale of assets if there is no money in the Dec'd estate and money is owed what is the process called
S34 (3) AEA 1925 - Abatement
1. Property not gifted
2. Residue (can retain part for PL)
3. Money set aside
4. Legacy/devise
5. Money for PL
6. Property high to low in value
39
Who does a Benjamin Order protect
Just the PRS
Bs could be chased by the missing Bs for their share
40
What protection covers both PRS and Bs
An insurance policy
41
What are the 3 ways for a grant of administration
Will - GOP
No Will - LOA
Will no E - LOA with will annexed
42
If a copy of a will is admitted to the probate registry what needs to accompany the will
Sworn evidence cannot locate the will
43
What is clearing off
What the party indicates to the probable registry that they are the most appropriate person to deal with the estate either because they are the E or next in list of NCPR rules
44
What does entering a caveat mean
Logging a red flag with probable registry
GOA cannot be granted unless removed or has expired (6 months)
45
What can an E do about the caveat
Entering an appearance - E can send a warning to the person who lodged the caveat asking them to evidence their interest or
Summons a direction - what the issue with the current E
46
What is the time time limit for a person who lodged a caveat to respond to the administrator who has asked them to enter an appearance or summons a direction
8 days - must respond if they don't caveat can be removed
47
Sometimes a grant need to be put in place for a temporary measure what are the 3 scenarios
Grant de Bonis non administratis
PR is not available
Grant ad colligenda
Property going to waste and need immediate steps to deal with
Grant pendente lite
Parties in dispute and action with the estate needs to be dealt with
48
If there is no attestation clause in a will what is the presumption
No presumption of due execution
49
What are the three expectations where land does not fall into the estate
1. only held a life tenancy
2. Joint tenant properties
3. Dec'd holding as a trustee of a bare trust
50
What 4 types of property do not fall within the estate
Held in Trust (life interest or JT)
Life insurance policies
Pensions
Donatio mortis causa
Joint owned property
51
What happens if a deceased does not leave an insurance policy on trust to someone
Will fall into the estate
52
What are the factors needed for gifts made in expectation of death
Contemplation of death
Only if D dies if not gift fails
Delivery of gift
53
What are the 3 ways revocation of a will can take place
Marriage (automatic revocation)
Exception where a particular person named and they state will not to be revoked
Another Will or codicil
Destruction
54
Under the I(PFD)A 1975 can siblings make a claim
Not unless they are maintained by the deceased as a dependant before Ds death
55
When you have a known but missing B what is the best step to take
Obtain a BENJAMIN ORDER
It can be done in connection with a notice under s27 TA 1925
56
Does a will need an attestation clause
No but with an AC it will create a presumption of due execution without an AC the E will likely need to submit an affidavit to prove Will has been validly executed
57
If a Will is lost what is the presumption
It is revoked and Ws need to rebut that presumption
58
Does a codicil re publish a will after marriage
A codicil executed after marriage republishes the will, making the original will valid as if executed on the date of the codicil. Thus, the marriage does not revoke the will.
59
If an E wishes to renounce what do they need to do ...
If T he executors have not intermeddled in the estate the can renounce executorship by deed.
60
What happens if an E is not referred to by name but by role or title
Appointment is void for uncertainty
61
Does an E lose the ability to renounce once they obtain GOP
Yes
62
Does arranging a funeral/insure dec'd assets/gathering papers mean a person has intermeddled
No
63
What are the rules needed for a E to renounce (5)
Must be in writing
Signed by E
Statement not intermeddled
Witnessed
Filed with the Probate Registry
64
If an E is also a Trustee do they need to renounce that role separately
Yes
65
If an E renounces from his E role but does not his T role is he still liable as a T
Yes must renounce from both roles
66
Can an E reclaim after he has renounced
No unless court allows them to
67
B are determined at which date
Date of wills execution.
68
Gifts take effect when
Upon the date of death can be superseded with the words 'now' or 'at'
69
Can a specific legacy be adeemed
Yes if they no longer own that particular asset
70
If a general legacy cannot be located what must the PRs do
They must require the asset if enough funds
71
Can a codicil save a gift from a ademption
Yes it republishes the will so would save the gift
72
The words a gift to my children will include and not include who
Actual children/adopted
BUT NOT
Step children
73
If a person leaves gifts to a class e.g 'my nephews' what does the law say on class closing
The class closes on the TS death if gift is immediate
The class closes on a later date if the gift is for a later date
The class will close on the first person to reach a conditional gift (T could be Alive or dead) and would close
74
Will a claim fail for an I(PFD)A fail because the dec’d lived in Scotland
Yes it only applies where the dec’d domiciled in E&W
75
How long must a spouse survive to inherit their estate
28 days
76
If a spouse and issue remain under the intestate rules what are their shares
SPOUSE
Personal Chattels
First £322,000
50% residue
ISSUE
50% Issue
77
Intestate List where no spouse or issue
Parents
Brothers/sisters (their issue)
Half Brothers/sisters (their issue)
Grandparents
Uncles/Aunties (their issue)
Half Uncles/Aunties (their issue)
Crown
78
What does Per Stirpes mean
If a member of the class of the intestacy rules is pre deceased their issue takes the estate
79
Who are excluded under the intestacy rules
Cohabitees & Step Children
80
What main assets are not included in the distribution of the estate
Joint Tenancies (Land & Bank)
Life Insurance
Pensions
Life interests in trust property
Gifts that has a reserved benefits
(I.e a gift just payable by IHT)
81
What two assets are excluded for IHT purposes and not included in the calculations
Life insurance
Pensions
82
To make a Will a person needs three fundamental things
Capacity
Intention
Formalities
83
Is capacity presumed?
Yes unless someone challenges the validity
84
How old do you need to be to make a privileged Will
16/17
85
What is the test for Capacity for a Will
Banks v Goodfellow
Nature of Act
Extent of Property
Claims to which they ought to give effect
86
What are the two requirements for a Intention for a Will
Knowledge - that he is making a Will
Approval - that he knows it is a Will that he is making
87
Is Intention for a Will presumed?
Yes but it is rebuttable that if T has the capacity he also had the intention
88
When does the presumption of intention to make a Will not apply
T is blind or illiterate (usually will have a special attestation clause)
Suspicious Circumstances e.g Will drafter benefits from the Will
89
When can a Will be admitted to Probate when Duress/capacity/UI etc has occurred
When the Court pronounces that it is valid and issues a Grant in solemn form
(GISF is usually made when there is a dispute about the Will that court needs to decide)
90
Can a party persuade another to make a Will
Yes as long as they do not coerce them resulting in undue influence arising.
Should a party challenge the Will they need to show on the BOP that the pressure/coercion overpowered the freedom of the T
91
Is undue influence or duress presumed
No
92
Four formalities to a Will
In writing
Signed by T or someone in his presence at his direction
Signed by or acknowledged by T in the presence of two witnesses
Signed by each W in the presence of T (but W do not need to be present together)
93
Attestation Clause
Signed by T in our presence then by us in his
94
If there is no attestation clause in a Will what does that mean
The party sending for GOP must provide that the formalities were followed usually with a witness statement of a witness
95
What are the three rules that need to be applied if a document is incorporated into the Will
In existence at date of Will
Referred to in the Will as existing
Clearly identifiable
96
Wha requirements are needed for a Codicil
Same as a Will
Refer to Will it is altering
97
Republication of a Will things:
Codicil Treated as the new date of the Will
With independent witness saves a gift if were a B and witnessed the original Will
Can add incorporate a document
98
What is the general rule about alterations to a Will
They are not effective unless executed correctly
99
What is the exception to the general rule that alterations will not be acceptable
When the obliteration is so complete it is no longer apparent
100
When the courts are looking at amendments what does they assume
That the amendments were made after the original execution of the Will and are therefore invalid unless proved otherwise
101
A codicil will republish a Will however if there are alterations to the original Will what is needed and why
Codicil needs to evidence the alterations or again the court will deem the alterations were made after the Will
102
What are the 4 ways to revoke a Will
A new Will
Destruction
Obliteration
Marriage or Civil Partnership
103
What is important when making a new Will
That this Will has a revocation clause to exclude all other previous wills
104
When destruction of a Will takes place what is important
That the Testator has the intention to destroy the Will
105
If a will is found mutilated at the date of death what does the court presume
That it was done by the T with the intention of revoking it
106
What is the exception to a marriage revokes a Will
Where the ill expressly states that they were intending to marry a particular person
107
Appointment of Executors to a Will must be what and the exception
Named - A description is void for uncertainty
Exception - Can name a firm of solicitors
108
Who cannot be an executor
A minor
Someone who lacks mental capacity
Divorcee
109
When can a person renounce as an executor
Provided they have to accepted office
(Which means they have applied for GOP or intermeddled)
If they do either they lose the right to renounce
110
What is not classed as intermeddling
Arranging funeral
Insuring assets
Gathering assets
Perusing papers
111
What is needed for an Executor to renounce
In writing
Signed by E
Statement of truth E has not intermeddled
Witnessed
Filed at the Probate Registry
112
If an E is also a Trustee what does they also need to do to renounce
Disclaimer the trusteeship if they do not wish to at
113
Can an Executor reclaim the title to probate after they have renounced
No unless the court allows them to do so
114
How does the power to reserve take place
When GOP applied for they will notify the Probate Registry that power is reserved by the other Es
115
What date does the gift in a will take effect
From the date of the Will
116
What date are the objects of the Will determined
Date of death
117
what is a specific legacy
A specific gift made by the T
118
What is a general legacy
A general gift to distinguished in the Will
119
What is a demonstrative legacy
A general legacy paid out of a designated fund
120
What is a pecuniary legacy
A gift of money which can be specific, general and demonstrative
121
What is the residuary legacy
The remaining of the estate
122
When can gifts fail
Ademption
Lapse
123
What is ademption
A specific gift ONLY will fail (adeem)
Remember a codicil could save the gift
124
If a gift in a will is to two or more people as Joint Tenants what is the difference between “to A and B jointly” “to A and B in equal shares”
A and B jointly - Will lapse if all Die before Testator & Will pass to other if one dies
A and B in equal shares - If A dies before B, As share lapses and B only takes his share
125
A gift to the T’s child who dies before T and who leaves an issue what happens
The living issue will receive the gift
126
Is the words “to such of my children as SHALL survive me” sufficient to constitute intention
Is the words “to such of my children as survive me” sufficient to constitute intention
No recent cases have agreed it is not
Yes as the phrase is unambiguous and says the residue estate is to be shared equally to those survived T
127
A gift to a B will fail when who signs as a Witness
B signs as a Witness
Bs spouse or civil partner witnesses
128
Name two ways gifts can be saved when a B or Bs spouse witnesses a will
When a codicil republished by new independent witnesses
When there are More than two witnesses
129
When a T leaves property to a class of beneficiaries what does the law assume
Class closes on death exception when the gift is postponed until a later date
130
When the gift in a will is conditional upon members of a class reach a certain age when does the class close
When the first member of the class reaches that age or condition (or on Testators death if he is still alive)
131
A gift to someone’s children includes ….
Illegitimate children and adopted children
BUT NOT step children
132
When T dies without a Will and has spouse and children how are assets shared…
Spouse
Chattles, statutory legacy 322,000, 1/2 of residue
Children
1/2 of residue split equally
133
What happens if a Testator only leave a spouse and no children
All is left to spouse (unless divorced)
134
How long must a spouse survive the deceased to be able to inherit
28 days
135
No spouse or children what is the order of entitlement
Parents
Siblings (issue)
1/2 siblings (issue)
Grandparents
Uncles & Aunts (issue)
1/2 Uncle & Aunts (issue)
Crown
136
What property passes outside the estate for distribution
Property owned as joint tenants
Bank Accounts as joint tenants
Life insurance polices
Pensions
Life Interests in Trust property
137
Most probate is non contentious so what court deals with the matter
Family Division of the High Court
138
What amount of an estate will only need a Death Certificate to deal with the estate
Under 5000 pounds
139
Can chattels be sold without the PRs having to prove they are entitled to sell the items
Yes
140
Where the Will is contentious what court deals with the matter
Chancery Division of the High Court
141
How many people can apply for GOP
4
142
When a person has reserved power and the other party applies for GOP what does the party who reserved power usually obtain
Notice of the party who has applied for GOP
143
Where does authority to act as an E come from
The Will, the grant of probate merely confirms the E is able to act
144
What happens to property when T dies with a Will which is appointed to E
The property vests in the E upon death
145
Rule 20 of the NCPR sets out the Order of who can obtain a Grant with Will annexed & Rule 22 of the NCPR sets out the Order of who can obtain a Grant with No Will
Executor
Trustee.
Residuary B
Rule 22 - same as intestacy list
146
What is the special rule where a gift fails due to a B or their spouse having witnessed the Will under order of applying for a grant
They lose their right to apply for a grant under the Rule 20 NCPR (as a B in the list) However as always there is an exception that the person could claim under a different capacity for e.g a spouse
147
When are two administrators needed
If there is a minor B or a life interest under a Will
148
Can power be reserved with a will annexed
No
149
Can a party apply for a grant to renounce when there are letters of administration
Yes as long as their right is not lost by intermeddling
150
What is clearing off?
Where a person applying for a grant has a better right to the grant and applies via form PA1P and PA1A
Anyone in a class who has the right to apply does not need to give notice to the others
151
What is a grant de bonis
A second grant made when the original PRs are not around to administer the estate
152
If a minor is appointed an E with another what happens
Grant is made to adult PR with power being reserved to the minor
153
If a minor alone is appointed an E what happens
A limited grant of letters of administration is made to minors parent/guardian until minor is 18
154
What needs to happen before a Grant is obtained
Pay IHT
155
What are the two Probate Application Forms
PA1A Where party left NO will
PA1P where party left a will
156
How long are caveats valid for
6 months
157
What is a Caveat
An application lodged with the Probate Registry to prevent an issue of a grant of representation.
158
What is a citation
a formal legal notice issued by the probate registry). Its main purpose is to compel someone who has a right or duty in relation to a deceased person's estate, particularly an executor named in a will, to take specific action or risk losing their right to do so.
Citations are typically used when there's a delay or inaction in the administration of an estate, especially when:
* A named executor is unwilling to act: An executor named in a will might be delaying applying for probate
* An executor has "intermeddled" but not obtained probate:
* There's a dispute over the validity of a will: A citation can be used to force someone to (formally prove) a will they are relying on, especially if there's a question about whether it's the deceased's last valid will.
Types of Citations
* Citation to accept or refuse a grant: This is the most common type. It's issued to an executor named in a will who hasn't yet taken steps to obtain the Grant of Probate and hasn't formally renounced their right to do so. The citation gives them a deadline to either accept their duties and apply for probate or formally renounce their executorship. If they fail to do so, the person who issued the citation (the "citor," usually a beneficiary or someone else with an interest in the estate) can then apply for the grant themselves.
* Citation to take probate: This is used when an executor has already "intermeddled" with the estate (taken steps to administer it) but has not yet obtained the Grant of Probate, especially if six months have passed since the death. The citation compels them to apply for the grant, or face potential court orders.
* Citation to propound a will: This is used when there's a dispute over which will is valid. It forces the executors of a particular will to formally prove its validity. If they fail to do so, it may open the door for another will to be propounded or for the estate to be administered under intestacy rules.
* It must be formally served on the person it is directed at (the "citee").
* The citee then has a specified period to respond (e.g., by entering an "appearance" in court).
* If the citee fails to respond or take the required action, the citor can then apply to the court for an order that allows them (or another specified person) to administer the estate.
Benefits of a Citation:
* It's a formal way to prompt action from a reluctant or inactive executor.
* It can be a more cost-effective and quicker alternative to a full court application to remove an executor.
* It helps to ensure that the deceased's estate is administered efficiently and in accordance with their wishes
159
Where a party has lost their right to renounce due to intermeddling but does not apply for a grant of representation what can the probate registry do
Issue a citation asking the appear however if they refuse to act a party can ask the court to dismiss the E
160
What can a person do instead of asking for a citation
Can apply to the probate registry for a order passing over a unwilling applicant i favour of someone else
161
How long do PRs have to deliver an account to HMRC of the dec’d death
12 months (however its usually much quicker due to interest being payable on IHT which is payable from 6 months from the end of the month of the Ds death)
162
What is the deadline to pay IHT
6 months from the end of the month the D died. Failure to do so results in interest being payable and no grant can be obtained without the IHT certificate
163
When a D was a co-owner of property at death what happens to the asset in terms of value
It is valued at the current market value
&
The asset is usually discounted due to the difficulty in selling a part
15% discount for residential
10% discount for investment property
NO DISCOUNT FOR SPOUSES
164
What is an excepted estate for IHT
An estate that owes no IHT as all their assets fall under the limit
NO IHT form needs to be submitted to HMRC
165
What is a low value excepted estate
Where the total amount is over 325,000 but below 3 million and once deductions it falls below the threshold
IHT needs to be submitted to include the deductions even though no IHT is payable
166
In terms of submitting IHT what happens to the value of assets and liabilities
Asset Values are rounded down and liabilities rounded up
167
How to apply for IHT
Online with original documents sent to the Probate Registry
168
What is the Executors ‘year’
Reasonable steps must be taken to administer the estate
169
Can PRs be liable for a breach of their duty of care to act with reasonable care and skill
Yes and could be personally liable to Bs and creditors for any loses
170
When can a court at its discretion relieve a PR from liability for breach of a duty
Where they are satisfied they have acted honestly and reasonable and ought fairly be excused
171
Can the E use an asset to satisfy a legacy or interest in the estate
Yes as long as B consents and no one else affected
172
Can PRs (trustees) delegate functions to agents
Yes
173
Can PRs reimburse themselves for expenses
Yes as long as they are properly incurred
174
Can PRs run a deceased sole trading business
The general rule is NO they do not have authority only to sell the business
175
PRs can protect themselves but complying with s27 TA 1925 how long should they wait before distribution
2 months
176
Claims under the I(PFD)A have how long to make a claim
6 oaths from the Grant of Representations
177
What is the order for Payments of debts of an estate
Secured Crediors
Unsecured Creditors
Funeral expenses
Preference debts (wages for employees up to 4 months max 800 pounds)
HMRC other debts
Interests on debts
Other debts
178
If an estate is insolvent does gifts to Bs take priority over creditors
No creditors are paid and if nothing left Bs will receive nothing
179
What happens if a PR pays a debt knowing there is a higher ranking category
Debt is paid with an implied warranty that there will be sufficient assets for the priority creditor of which they have notice. If no sufficient funds PRs will be personally liable
If no notice provided the PR did to act with undo haste they will not be liable
180
What does Disclaim mean ?
Where a B tells the PRs orally or in writing they do not wish their gift
(A DISCLAIMER must be in writing to be effective for IHT and CGT purposes)
181
Can a B change who receive their gift under inheritance
Yes by a variation
182
Can a Variation or Disclaimer under a Will be made even if the B has accepted the gift
Cannot Disclaim if accepted
Can Vary even if B has accepted the benefit
183
Costs of transferring land/stock transfers/chattels under a Will is payable by whom
The Beneficiary
184
It is important to obtain receipts from Bs when they receive their gift under a Will however who cannot give a good receipt and what happens
Minors - Someone with parental responsibility can give a receipt on their behalf
185
What is a certificate of discharge regarding PRs and Wills
A certificate of discharge given by HMRC which avoids any further IHT liability
186
What do PRs do after keeping a record of all the accounts distributed under a Will
Endorse the Accounts to indicate their approval. Then sent to residuary Bs for them to endorse
This formally discharges the PRs from any further claims
187
If a B refuses to sign the accounts what can the PRs do
Seek the court to approve the accounts
188
PRs are personally liable to any unpaid unknown B or creditor unless they do what
The Procedure for Placing a Section 27 Notice
For the protection to apply, a specific procedure must be followed:
* The notice must be published in The Gazette
* Local Newspaper: If the estate includes land, a notice must also be placed in a newspaper that circulates in the locality where the land is situated.
* Time Limit: The notice must set a period of at least two months
The Effect of the Notice
* Statutory Protection: Once the two-month period has expired, the trustee or personal representative can distribute the estate to the beneficiaries. They will then be protected from personal liability for any claims from creditors or beneficiaries they were unaware of, provided they have not made any other negligent or fraudulent distributions.
* Claimants' Rights: The notice does not extinguish a creditor's or beneficiary's claim. It simply means that if they come forward after the statutory period has ended and the estate has been distributed, they must pursue their claim against the beneficiaries who received the assets, not the trustee or personal representative.
Important Considerations
* Not a Legal Requirement: It is not a legal requirement to place a Section 27 notice. However, it is considered a best-practice approach to managing risk and is highly recommended by legal professionals.
* Due Diligence: The notice does not free the trustee from their obligation to conduct proper due diligence and searches to find all known creditors and beneficiaries.
* Alternative Protection: As an alternative to placing a notice, some personal representatives may opt for an indemnity insurance policy to protect themselves from unknown claims, especially if they wish to distribute the estate more quickly.
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Guidelines the court will consider for the I(PFD)A
Finances of the Dependent
Any moral obligations
Size of the estate
Physical or mental disabilities of Dependant
Additionally for a spouse/cohabitant
Age and duration of the marriage
Contributing to the deceases family
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Can different parts of a deceased's estate be administered by different executors
Yes e.g. the Dec'd business and the remainder of the estate
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Authority to act as E
Authority to act derives from the will and the testator’s property vests in the executors on death. 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 executor’s authority to act
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Name some ways where LOA with will annexed will be needed
* the apt of the E in the will was not correctly drafted
* the will is valid but the deceased did not appoint an executor
* the executor died before the deceased, renounced or is unable or unwilling to act
* the apt was of the testator’s spouse and has failed as a result of the divorce,
* the executor has died after the testator but before taking the grant.
*Died partially intestate
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Rule 20 NCPR sets out the order of entitlement of grand for LOA with Will annexed
(a) executor (this only applies where part of the estate, the residue, is intestate)
(b) trustee of the residuary estate
(c) any other residuary beneficiary or anyone entitled to a share in the undisposed of residue (where there is a partial intestacy); vested interests are preferred to contingent ones
(d) personal representatives of anyone in (c), other than a life tenant of the residue
(e) any other beneficiary or a creditor, and
(f) personal representatives of anyone in (e) other than a life tenant
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When looking at the NCPR rules of entitlement if and E or T is not available who is treated as the principal
The B of the residuary interest is treated as the principal interest, regardless of its value
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What is the special rule of order of entitlement where a B loses their right to a gift because maybe they witnessed the Will
they can claim in a different capacity, for example, as a person entitled on partial intestacy.
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What the difference between an E losing their right to renounce if intermeddled and someone who applies for a grant of LOA with will annexed
Their right is not lost by intermeddling in the estate
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what is clearing off
The person applying for a grant must clear off (in other words, account for) those having a better right to the grant.
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How is clearing off achieved?
completing the relevant information in Forms PA1P and PA1A confirming they have the right to apply and if any other people have renounced with confirmation
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when clearing off if another person is in the same class as them do they need to give notice
No notice is required.
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LOA order of entitlement
(a) surviving spouse (or civil partner)
(b) children of the deceased and the issue of any predeceased child
(c) deceased’s parents
(d) deceased’s brothers and sisters of the whole blood (and issue of predeceased)
(e) deceased’s brothers and sisters of the half-blood (and issue of predeceased)
(f) grandparents
(g) uncles and aunts of the whole blood (and issue of predeceased)
(h) uncles and aunts of the half-blood (and issue of predeceased)
(i) the Crown, and
(j) a creditor of the deceased.
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What is a Grants de bonis non
a second grant made to allow the completion of the administration of the deceased’s estate, following the death of the sole or last surviving personal representative or where a previous grant has been revoked
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Minors cannot apply for a Grant of Representation but an adult E can. What happens to the minor?
They will have power reserved to them.
If the minor is the only or last surviving personal representative, a limited grant of letters of administration is made to the minor’s parent or guardian for the use and benefit of the minor until age 18.
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How long are caveats valid for
6 months
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What is the difference between a caveat and a citation
Caveat - to prevent an issue of grant due to a problem
Citation - E has lost their right to renounce by intermeddling but have not applied for a GOR
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if a dec'd was a co-owner of land at death what benefit do they get
Market value of their interest will usually be discounted to reflect the difficulty of selling a part interest in land.
HMRC will not permit any discount in value for land co-owned with spouses or civil partners.
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Value of discount on property co-owner when a person is dec'd for IHT purposes
A 15% discount is normally considered acceptable for residential property and a 10% discount for investment property.
The discount is not applicable where other assets are co-owned.
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What is an estate that owes no IHT called
An excepted estate
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if an estate is excepted what does it mean
no need to file with HMRC
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When to report to HMRC of an excepted estate even if no IHT payable
* gave away over £250,000 in the 7 years before they died
* gave gifts then continued to benefit from them in the 7 years before they died
* left an estate worth more than £3 million
* was ‘deemed domiciled’ in the UK
* had foreign assets worth more than £100,000
* was living permanently outside the UK when they died but had previously lived in the UK
* had a life insurance policy that paid out to someone other than their spouse or civil partner and also had an annuity
* had increased the value of a lump sum from a personal pension to be paid after their death, while they were terminally ill or in poor health
* had agreed that property they’d given away during their lifetime would be part of their estate rather than pay a pre-owned asset charge
You’ll need to complete a full account if the deceased:
* gave gifts that were paid into trusts
* held assets worth over £250,000 in trust
* held more than one trust
You’ll also need to complete a full account if assets held in trust passed to a surviving spouse, civil partner or charity and the trust was worth:
* £1 million or more
* £250,000 or more after the amount passing to the surviving spouse, civil partner or charity has been deducted[.]
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What is a grant of representation
legal document that confirms a person’s ability to administer the estate of the deceased.
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When can a person estate be administered without a Grant of Representation
When a Death Certificate can be used for money under £5000 and the sale of tangible items
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What are your clients when probate is being adminstered
the Personal Representatives NOT the Beneficiaries
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If there are multiple people who are entitled to apply for a grant, who will the court prefer a vested or contingent interest
a beneficiary with a vested interest over a beneficiary with a contingent interest.
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Clearing off
But what if there are people in the same class who are equally entitled? any person in that class can apply applicant must account for anyone with a better right to a grant – this is known as “clearing off”.
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As a special rule, if there is a life interest or a minor beneficiary entitled under the will what will be required
Two administrators will be required
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what is an affidavit of plight and condition
This may include where pin or staple marks can be seen, which suggest that the will has been tampered with or even revoked
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Caveats
A caveat is lodged with the Probate Registry to prevent the issue of a grant of representation. The person lodging the caveat – the “caveator” – may do this if they are a beneficiary and they believe that the executor named in the will lacks mental capacity to act, or they believe the will to be invalid. If the matter cannot be resolved amicably, it may end up with a judge deciding what should happen
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Citation
There are two types of citations: a citation to take probate and a citation to accept or refuse grant. A citation to take probate may be used when an executor has lost their right to renounce probate by intermeddling in the estate - but they have not applied for a grant and do not intend to do so.
A citation to accept or refuse a grant is used to clear off a person with a prior right to any type of grant who has not applied, and shows no intention of applying, for a grant. If the cited person does not take out a grant, a grant may be issued to the “citor”.
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The Trustee Act 2000 applies to both …..
PRs and Trustees
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What does the Trustee Act require from PRs and Trustees
That they act with reasonable care and skill and will act in accordance with any specialist knowledge or experience
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Can a Will exclude PRs liability for breach of a duty of care
Yes this is typical
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If a T or PR breaches their duty of care what could happen
Could be liable to the Bs or creditors for losses arising from the breach
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Is a PR liable for the loss from a fellow PR
No not unless negligence is an issue
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What are the 10 statutory powers given to PRs
1. Power to Sell/Mortgage/Lease
2. Power to Appropriate
3. Power to Accept Receipts from Minors
4. Power to Insure
5. Power to Delegate
6. Power to Reimburse for expenses
7. Power to run Dec;d business
8. Power to Invest
9. Power of maintenance
10. Power to Advance Capital
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What is the power to appropriate
To satisfy a legacy provided the B consents and no other B is affected
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Can minors give a valid receipt
No
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How does a PR overcome a minor not being able to give a valid receipt
By appointing a Trustee for a minor who has a vested interest
Usually someone with PR
Contingent gifts cannot be paid out early
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Can PRs reimburse themselves for their work
Only for expenses
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What is the general rule about a PR running the Dec’d business
Sole Trader no authority only to sell it
Partnership must consult the Partnership Agreement
Shareholder Articles must be reviewed
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Power of Maintenance can be for whom
Minors only
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Power of advancement of capital can benefit whom
Can a minor AND others
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Power of Maintenance what does it mean
Where property held for a minor T can give income to B for maintenance/education or a benefit
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Power of Maintenance can it apply to minors who have a vested or contingent interest
Applies to Both
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Power of advancement does it only apply to minors
No
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Power of Maintenance v Power of Advancement which relates to income and which to capital
POM income
POA capital
236
Consent from whom is need for a power of advancement of capital
Any B who has an interest
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How can PRs protect themselves from unknown Bs or Creditors
By placing ads in the London Gazette
Local Papers
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How long does Ads need to be left before distribution to protect PRs
2 months any creditor or B must make contact
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How do PRs protect themselves from known Bs or Creditors (4)
Make the payment owed to the Court for safekeeping
Obtain an indemnity from the B (could be worthless if B is broke)
Benjamin Order which is courts consent to to distribute
Insurance
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Why could obtaining an indemnity from a B be worthless from protecting from known Bs or creditors
Because they may be broke
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How long should a PR wait to distribute for any claims under the Inheritance (provisions for family and dependents) Act
6 months
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If an asset is vested in a B at date of death is there a chargeable event
No
243
When will an estate be classed as solvent
Where funeral, debts and liabilities can be paid in full.
Whether the legacies under the Will can be satisfied is irrelevant
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Unsecured creditors should be paid from the estates assets in the following order
Property undisposed of in the Will
Residue
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After the residue has been used up for debts what is the order
Property specifcailly given for debts
property specifically directed to be used after surplus
Pecuniary legacy fund
Property devised or bequeathed
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What is the doctrine of marshalling
The doctrine of marshalling is an equitable principle that aims to ensure fairness in the distribution of assets, particularly in the context of deceased estates. It primarily deals with situations where there are multiple funds (assets) and multiple claimants (creditors or beneficiaries), and one claimant has access to more than one fund, while another claimant has access to only one.
There are two main contexts in which the doctrine of marshalling is particularly relevant:
* Marshalling in relation to creditors: This is the more traditional application. If a creditor (Creditor A) has a claim against two different assets of the deceased's estate, and another creditor (Creditor B) has a claim against only one of those assets, the doctrine of marshalling may require Creditor A to satisfy their debt from the asset that Creditor B has no claim over. This prevents Creditor B from being unfairly prejudiced and potentially left without recourse. The aim is to ensure that both creditors are paid if possible.
* Marshalling in relation to beneficiaries: This applies when an estate is solvent but there are insufficient assets to meet all the legacies and devises (gifts) made in a will, particularly after debts have been paid. The Administration of Estates Act 1925 in the UK sets out a statutory order in which assets are applied to meet unsecured debts. If this order is not followed by the personal representatives, a beneficiary who is "disappointed" (meaning their gift is reduced or eliminated because assets were used in the wrong order) may be entitled to be compensated from the assets that should have been taken first. This is a form of marshalling.
Key principles of marshalling in the context of beneficiaries and Personal Representatives (PRs):
* Role of Personal Representatives (PRs): PRs (executors or administrators) have a duty to collect in the deceased's assets, pay their liabilities (debts, taxes, funeral expenses), and then distribute the balance to the beneficiaries according to the will or intestacy rules.
* Order of Application of Assets: When an estate's assets are not sufficient to cover all debts and legacies, the law (specifically the Administration of Estates Act 1925 in the UK) dictates a specific order in which different types of assets are to be used to pay debts. This order generally prioritises undisposed of property, then residue, then funds set aside for pecuniary legacies, and finally specific gifts.
* Preventing Disappointment: The doctrine of marshalling comes into play if the PRs deviate from this statutory order, leading to a beneficiary's gift being unfairly reduced or extinguished. Marshalling allows the disappointed beneficiary to claim against other assets that should have been used first, effectively rearranging the burden of the debts to ensure fairness among beneficiaries.
* Specific vs. General Gifts: The doctrine often protects specific beneficiaries (those who receive a particular asset, like a house or a specific sum of money) against general devisees and legatees (those who receive a share of the residue of the estate).
* Secured Debts: Section 35 of the Administration of Estates Act 1925 specifically deals with secured debts (e.g., mortgages). Unless the will states otherwise, a debt charged on a specifically gifted asset is generally borne by the specific beneficiary of that asset, not by the general estate (residue). However, marshalling can still apply if the PRs pay a secured debt from the wrong fund, thereby prejudicing other beneficiaries.
* Equity's Intervention: Marshalling is an equitable doctrine, meaning it aims to achieve fairness where strict legal rules might lead to an unjust outcome. It doesn't diminish the rights of the "double claimant" (the one with access to more funds) but ensures that the "single claimant" (the one with access to only one fund) is not unfairly disadvantaged.
In essence, the doctrine of marshalling ensures that PRs administer the estate in a way that respects the legal order of applying assets to debts, and if they fail to do so, it provides a mechanism for beneficiaries to seek an equitable adjustment to compensate for any resulting prejudice.
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Order of payment of debts of an estate by a PR
REASONABLE funereal and admin expenses
Preferred debts (wages and salaries) max 4 months 800 pounds
HMRC and ordinary debts
248
Can a PR be liable for an inferior debt not paid when they did not have notice
No provided they did not distribute the estate with haste
249
What two methods can be used to change the way the distribution of the estate is given
Disclaimers
AND
Variations
250
What is a Disclaimer
Where a B confirms orally or in writing they do not wat the git as long as they have not accepted the gift
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Can a variation of a gift be possible even if the B accepted the original benefit
Yes different to disclaimers where you cannot
252
Cost of transfers of gifts who bears the costs
The beneficiary
253
What is the abatement doctrine of Wills of debts and legacies
When the assets of a Dec’d are not enough to satisfy creditors their debts must be proportionally reduced and creditors will have to accept less
254
What should a PR do once a gift in a will has been given
Obtain a receipt
255
What is a certificate of discharge
A document that the PR should obtain to discharge them from any HMRC liability
256
What do PRs do to the accounts at the end of a transaction
Endorse the accounts to indicate their approval
257
What happens to the accounts after the PRs have endorsed them
They are sent to the residuary Bs to endorse and formally discharge the PRs
258
What happens if the Bs will not endorse the accounts
The PRs can ask the court to approve them
259
What are the three elements to satisfy the relevant test for mental capacity?
This includes an understanding of:
1. the nature of the act
2. the extent of their property, and
3. the claims to which they ought to give effect.
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A person made a will, but it was not properly witnessed. When they die, they are survived by their spouse and three children, aged 17, 19 and 22. The person’s estate includes personal chattels of £20,000, business assets worth £165,000 and the proceeds of a life insurance policy of £300,000.
Question
How much are the spouse and children entitled to inherit?
The spouse is entitled to the personal chattels, £322,000 and 50% of the residue.
The children are entitled to 50% of the residue (after any inheritance tax due), to be divided equally between them
261
What are the factors the court consider for a claim regarding the reasonable financial provision after a person died and did not leave any money in the will (5)
Financial resources of applicant
Needs of the applicant
Any moral obligation by dec'd
Size and nature of the estate
Physical/mental disability of A
Extra for spouse
How long married
Contributions in marriage
262
What is the time limit for claims under I(PFD)A
6 months from GOR or with leave of the court
263
How can PRs be protected from personal liability under the I(FPD)A
By waiting 6 months to pass before distribution
264
Who can claim under I(FPD)A (4) and likely exemption
Current and former spouses
Child or treated as a child
Person maintained by Dec'd
Partner lives with Dec'd (2 years)
AN ADULT CHILD if they are abled bodied and in employment
265
Who issues the GOR?
The high court
266
What are the 3 types of grants?
GOP
LOA
LOA with will annexed
267
Max no if people who can take out the GOR
4
268
What is RULE 20 of the NCPR?
Where there is a Will But no execute and the Order is as follows
Executor
Trustee
Residuary B
PRs of residuary B
Next B
269
What is Rule 22 NCPR?
Where there is no Will and the order of who can't apply is as per the intestacy list
270
Can an E refuse to act
Yes as long as not intermeddled promptly filing written form with PROBATE REGISTRY
271
When a person is nominated under the NCPR rules what are they called
Administrators
272
Executor is a minor, who can apply for the Grant
Parent as an administrator
273
What it's important where the sole Executor is a minor
If minor has no interest in the residue. And B is entitled to residue they will be the administrator instead of the parent with power reserved to minor
274
What must you do before you can obtain the grant?
Pay IHT
275
What two catergories are excepted estate and no IHT form needed?
Low Value - under £325k or all to spouse £650k
EEE - above £325k below £3m but after spouse and charity under £325
But if any special factors exist then IHT form needs to be submitted
276
If no IHT is payable what needs to happen?
Apply online for a code and submit death cert and any will/codicil
277
When should IHT be paid
Within a year but interest starts to accrue after 6 months
278
If there is a doubt with a Will what is required
An affidavit
279
If a spouse lives in the family home upon the Dec'd death what is the entitlement?
Can take the family home but pay the difference - Must do so within 12 months of GOP
280
What is partial intestacy?
where there is a valid will but it does not deal with the whole estate and the intestacy rules will apply
281
Excluded property that does not form part of the estate
Property held as JTs
Life Insurance
Pensions
DMC
Trusts where the Dec'd is a LT and there is a remainderman
282
How long must a spouse survive to inheret?
28 DAYS
283
To make a Will you need what
Be over 18
Capacity
Intention
Formalies
284
Duress, Fraud and Undue Influence renders a Will
Invalid
285
If a Will is invalid what happens
It cannot be admitted to probate and the intestacy rules will apply
286
What case is significant for capacity in Wills and the test (3)
Banks v Goodfellows test
What it means to make a will and its effect
What they own and what they are passing down in the will
Aware of the moral issues/decisions they are making
287
When is a person presumed to have capacity to make a Will
If the will appears valid and rational - presumed capacity
if any doubt of capacity or appears irrational - presumption lacked capacity
288
What is the golden rule if a solicitor has any doubts about a person capacity when making a Will
Get a Medical Report and keep a contemporaneous record
289
What must a person have (2) at the time of execution of a Will
KNOWLEDGE & APPROVAL- an intention to make a Will not any other document AND Know and approve of the contents of the Will they are signing
290
When is knowledge and approval presumed
When there is an attestation clause in the Will
291
A Will written in pencil is assumed to be a what?
Draft but this presumption can be rebutted
292
What is the attestation clause
Signed by xxx in the presence and attested by two joint witnesses xxxx
293
If a Will does not contain an attestation clause what will the Probate Registry require
An affidavit
294
Can a minor witness a Will
yes (weirdly)
295
Where there is a Will and Codicil what date will be used
the date of the Codicil
296
Can a specific gift be replaced from the other assets
No the gift fails - adeemed
297
Can a general gift be make up of other assets
Yes
298
What happens if a gift fails
It becomes part of the residuary esate
299
300
B dies before the T what happens
Gift lapses and falls into residue unless per stirpes apply or JT
301
If a B dies and the gift is to JT or TIC what happens
JT - survivorship rule applies other party takes the gift
TIC - the B who died their shares falls back to the estate/residue
302
Where the nature of the gift fails e.g. money specifically refers to a bank account and money in a different bank account what happens
Gift fails and fails into the residue
303
B kills the testator what are the rules (murder & manslaughter)
Murder - Gift fails even if the intestacy rules apply
Manslaughter - court can modify the above rule 3 months to make application
304
For any debts incurred whilst running a dec'd business who is liable
The PRs personally but the money can likely be claimed back from the estate via an indemnity
305
Outstanding Mortgages in an estate what happens to them?
They go with the property so B takes the property with it
306
If an estate is insolvent and creditors fall in the same class how is the fund apportioned
In proportion to the outstanding debt
307
Who bears the cost of the transfer of a gift under a Will
Beneficiary
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