Estate Administration

3 Matter Plans Included

ALERTS - Nil
Full Commentary - Probate
Reference materials
- Electronic Signing and Witnessing
- 101 Succession Answers
- Looking to the Future
Overview

This commentary sets out the law on dealing with an estate when the deceased has left a valid will appointing executors, and a grant of probate is required. Intestacy and partial intestacy are covered in the Letters of Administration guide.
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Summary of the process

Grant of probate The usual steps in acting for the executor or executors on a grant of probate are:
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A. Getting the matter underway
- Client engagement
  
  Where the firm is to act for several executors, those clients should be advised that the firm cannot act, or continue acting, where there is a material conflict of interest or one arises. Although executors may suggest that one should be the main point of contact, care should be taken when agreeing ...
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- File cover sheet - Probate
- To do list - Estates
- First steps
- Retainer instructions - Estates
- BETA - AI Prompt for Formalising File Notes
- Compliance documents
  - Client Due Diligence and Anti-money Laundering Guidance
  - Client Details, Identity Verification and Source of Funds
  - Conflict of interest check
  - Client and matter risk assessment
  - If required - Reporting an issue
    
    Anti-money laundering internal disclosure
- Initial letter to client enclosing Client Care and Terms of Business and authority
- Enclosures for initial letter to client
  - Client care information
  - Terms of business
  - Scope of work - Estates
  - A summary of the process for dealing with estates
- Initial letter to executor explaining executorial duties
- BETA - AI Prompt for letter notifying executors and trustees of roles, responsibilities and powers
- If required - Authority previous solicitor
  - Letter to another solicitor with authority to obtain documents
  - Enclosure - Authority of executor to obtain documents from another solicitor
- Time and costs estimates
- If required - Letter to client varying the Client Care and Terms of Business
  - Letter to client varying the Client Care and Terms of Business
- General deeds, agreements, statements, declarations, consents, and execution clauses
  - Deeds and agreements
  - Deeds
    
    Deed for general use
    
    Deed of assignment of agreement
    
    Deed of assignment of agreement with consent
    
    Deed of assignment of an insurance policy
    
    Deed of assignment of equitable interest in residential land
    
    Deed of gift
    
    Deed of guarantee
    
    Deed of release
    
    Deed of release and grant
    
    General deed of indemnity
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Boundary agreement
    
    Confidentiality agreement
    
    Construction agreement
    
    Heads of agreement
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Statements and declarations
    
    Statement of truth
    
    Statement of truth - High Court
    
    Statutory declaration
    
    Statutory declaration of solvency
    
    Affidavit - General
    
    Exhibit sheet for affidavits - General
    
    Witness statement - Family matters
    
    Exhibit sheet to witness statement - Family matters
    
    Witness statement - Civil matters
    
    Exhibit sheet to witness statement - Civil matters
  - Execution clauses
    
    Execution clauses - Agreements and contracts
    
    Execution clauses - Deeds
    
    Execution clauses - Overseas companies
  - Consents
    
    If required - Personal data consent - General
    
    Letter to client enclosing consent - General
    
    Letter to third party enclosing consent - General
    
    General letter enclosing client consent
    
    General letter enclosing third party consent
    
    Consent to provide information - General
    
    Consent to provide information - General - Third party
    
    If required - Personal data consent - Health professional
    
    Letter to client enclosing consent - Health professional
    
    Letter to third party enclosing consent - Health professional
    
    Letter to doctor enclosing client consent
    
    Letter to doctor enclosing third party consent
    
    Consent to provide information - Health professional
    
    Consent to provide information - Health professional - Third party
    
    Change of name
    
    Change of name deed for an adult - Concise
    
    Change of name deed for a minor - Concise
    
    If required - Enrolment by an adult
    
    Change of name deed for an adult - For enrolment
    
    Statutory declaration - Enrolment of adult change of name deed
    
    Notice for the London Gazette on the change of name of an adult
    
    Consent to enrolment of change of name of an adult
    
    If required - Enrolment by a minor
    
    Change of name deed for a minor - For enrolment
    
    Statutory declaration - Enrolment of minor change of name deed
    
    Affidavit of best interest for the change of name of a minor
    
    Consent to enrolment of change of name of a minor
B. Preliminary considerations
- Locating a will
  
  In most cases, a will is easy to find among the deceased’s possessions or files. It may be brought to the firm by an executor or retrieved from its safe storage facility. However, there may be difficulty locating a will in some circumstances or knowing whether the will that has been located is the ...
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- Letter to probate registry enclosing Form PA1S
- Postal search of the probate records of England and Wales
- Online search of probate records
- If required - Subpoena for a will
  - Subpoena for a will
    
    Where the will is in the possession of a person who will not release it, hindering the personal representatives from obtaining a grant of representation, they can apply to the court for a subpoena: s 123 of the Senior Courts Act 1981. The effect of the subpoena is to require the person in ...
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  - Witness summons
  - Affidavit - Estates
  - Example content - Affidavit in support of subpoena
  - Example content - Subpoena for a will
  - Example content - Court order to examine holder of will
  - Letter to probate registry filing draft subpoena and supporting documents for settling
  - Letter of personal service upon person in possession of the will
- Death, remains and funeral wishes
- Cause of death
  
  Consideration of the cause of death will indicate whether there is a cause of action for compensation or damages. For example, if death resulted from a motor vehicle or work accident.
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- Simultaneous deaths
  
  Where more than two persons have died, the oldest person is presumed to have died first: s 184 of the Law of Property Act 1925.
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- Presumption of death
  
  The Presumption of Death Act 2013 allows an application to be made to the High Court to declare a person presumed dead if there is no evidence of their being alive for at least seven years. The court’s jurisdiction is dependent on:
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- Funeral expenses, debtors and creditors
  
  Funeral expenses To pay funeral expenses, most banks will allow funds to be withdrawn from the deceased’s bank account before a grant of representation is obtained on presentation of the death certificate and funeral director’s invoice.
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- Insolvent estates
  
  An estate is insolvent when the total value of its assets is less than its liabilities. An estate’s liabilities are to be settled in strict order, as set out below if a personal representative is to avoid personal liability and claims against them by creditors who are wrongly excluded.
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- Joint debt
  
  The survivor becomes fully liable for joint liabilities such as a mortgage or utility accounts. For property held under a joint tenancy:
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- When a grant is not required
  
  Broadly, there is no requirement to obtain a grant if the value of the estate is under £10,000 or only includes jointly owned property which will pass by way of survivorship to the other joint tenant. Most banks and financial institutions have thresholds running between £5,000 and £50,000. If the ...
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- Distribution without a grant
  
  An executor or administrator may want to protect themselves when distributing the estate without a grant. A Deed of Release and Indemnity to be signed by recipient beneficiaries is available on the matter plan.
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- Intestacy
  
  The statutory intestacy rules are set out in ss 46–49 of the Administration of Estates Act 1925. Total intestacy arises when the deceased dies without leaving either a will or a valid will.
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C. Executors and administrators
- Executors and administrators
  
  Wills appoint executors, and the court appoints administrators. As a will appoints the executor, their identity is known.
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- Co-habiting partners
  
  The partner of the deceased, who was not their spouse or civil partner, cannot apply as they are not automatically entitled to a share of the estate and therefore do not form part of the statutory order of priority for grant applications.
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- Resignation and removal of executors and administrators
  
  Resignation or removal of a personal representative after the grant of representation has been issued is not a simple process. The probate registry has a limited power to amend or revoke a grant of probate and only in exceptional circumstances: r 41 of The Non-Contentious Probate Rules 1987.
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- Death of executors
  
  The death of one of several executors sees the survivors continue. On the death of the last of the executors, that person’s executor becomes the executor by representation: s 7 of the Administration of Estates Act 1925.
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- Duties of an executor or an administrator
  
  Personal representatives are responsible for the entire administration of the estate until the beneficiaries’ final distribution has been made. The duties of a personal representative are set out in s 25 of the Administration of Estates Act 1925 and include:
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- If required - Reluctant and unavailable executors
  - Reluctant and unavailable executors
    
    Personal representatives may be daunted by the prospect of dealing with the deceased’s estate, especially when they are grieving themselves. An executor cannot be forced to apply for probate. However, if they have intermeddled in the estate before the grant of probate has been issued, they may lose ...
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  - Power of attorney (Will)
  - Power of attorney (Intestate)
  - Medical certificate
- If required - Renunciation and power reserved
  - Renunciation by personal representatives
    
    If a personal representative does not wish to apply for a grant of representation, they are required to renounce: see form PA15 Renunciation (Will) – Give up Right as an Executor or Administrator for executors and form PA16 Renunciation (Without a Will) – Give up Right as an Administrator for ...
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  - Letter to renouncing executor with renunciation
  - Renunciation (Will)
  - Renunciation (Intestate – without a will)
  - Renunciation (with a Will - Partner/director/member/shareholder in a firm)
  - Letter to non-proving executor with power reserved authority
  - Power reserved authority
  - Notice for non-proving executor
D. If required - Caveats, citations and standing searches
- Caveats
  - Caveats
    
    When a challenge to the terms of a will is being considered before the grant of probate, it is necessary to put the court on notice of the challenge. Practitioners may find the following reference guides helpful:
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  - Application to stop a grant of representation, or extend a stop on a grant of representation
  - Application to extend a caveat on a grant of representation
  - Example content - Caveat
  - Warning to caveator
  - Example content - Affidavit of service of warning
  - Letter to client regarding the caveat
  - Letter to caveator's solicitor for details
  - Appearance to warning or citation
  - Witness summons
  - Example content - Order for grant after caveat
- Citations
  - Citations
    
    Where necessary, a beneficiary or next of kin can use the process of citation, being a court order or declaration calling on the executor to apply for probate formally. See s 112 of the Senior Courts Act 1981 and rr 46-47 of The Non-Contentious Probate Rules 1987. If the executor does not ...
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  - Letter to probate registry with draft citation and supporting documents
  - Example content - Citation to accept or refuse a grant
  - Example content - Citation to take probate
  - Example content - Citation to propound a will
  - Affidavit - Estates
  - Example content - Affidavit in support of citation to accept or refuse a grant
  - Example content - Affidavit in support of citation to take probate
  - Example content - Affidavit in support of citation to propound a will
  - Example content - Affidavit by citee accepting grant
  - Statement of truth - Estates
  - Example content - Statement of truth in support of citation to accept or refuse a grant
  - Example content - Statement of truth in support of citation to take probate
  - Example content - Statement of truth in support of citation to propound a will
  - Letter of personal service of sealed copy citation on citee
  - Example content - Affidavit of service of sealed citation on citee
  - Example content - Statement of truth of service of sealed citation on citee
  - Certificate of service
  - Letter to probate registry filing document of service
  - Example content - Citation for advertisement
  - Letter to probate registry filing published advertisement and copies of the editions of the newspapers publishing
  - Letter to probate registry filing appearance
  - Letter of personal service of sealed copy appearance on citee
  - Letter of postal service of sealed copy appearance on citee
  - Example content - General form of summons
  - Example content - Statement of truth by the citor after citation to accept or refuse a grant
  - Letter of service of court order upon the citee
- Standing searches
  - Standing searches
    
    Filing a standing search at the probate registry is an alternative to lodging a caveat. If a grant of probate has been issued, a copy of it and the will may be obtained from the probate registry.
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  - Postal search of the probate records of England and Wales
  - Letter to probate registry enclosing Form PA1S
  - Passing over of executors
    
    If any person objects to an executor applying for a grant, they can apply to the court to exercise its discretionary power to issue a limited grant of letters of administration if it considers special circumstances have arisen, deeming it necessary to do so: see s 116 of the Senior Courts Act ...
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  - Example content - Affidavit for an order for limited grant under s116 of the Senior Courts Act 1981
  - Probate application - without a will
  - Example content - Statement of truth for limited grant under s116 of the Senior Courts Act 1981
E. If required - Challenging or rectifying the will
- Challenging the validity of a will
  
  Currently, there is a division between non-contentious and contentious business in the probate courts. Putting a will forward for probate, whether in a contentious or non-contentious process, is known as propounding the will.
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- Non-contentious probate business
  
  Non-contentious probate business is defined by s 128 of the Senior Courts Act 1981 as:
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- Contentious probate business
  
  Contentious probate business is not defined in law and involves probate activity of an adversarial nature. Briefly, where the validity of a will is challenged, the executor, or other interested persons under the will, propounds it in a contentious claim at court.
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- Rectification
  
  Section 20 of the Administration of Justice Act 1982 gives the court the power to order a will to be rectified to remedy a failure to carry out the testator’s intentions due to either a clerical error or a failure to understand their instructions. The statutory power of rectification allows ...
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- BETA - AI Prompt for details of N2 claim form
- Claim form (probate claim)
- Affidavit - Estates
- Letter to probate registry submitting a claim for rectification
F. Gathering information
- Beneficiaries
  - Beneficiaries
    
    Attesting witness Section 15 of the Wills Act 1837 provides that any gifts to an attesting witness are void; this includes beneficiaries. The will remains valid; only the gift to the witness fails.
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  - Initial letter to specific beneficiary
  - Initial letter to residuary beneficiary
  - Letter to charity beneficiary
  - Initial letter to charity residuary beneficiary
  - Beneficiary privacy notice
- Library of initial probate letters to asset holders
  - Banks, building societies, debtors and creditors
    
    Initial letter to bank or building society
    
    Initial letter to creditor
    
    Initial letter to debtor
  - Property
    
    Initial letter to valuer
    
    Initial letter to local council regarding council tax
    
    Initial letter to mortgage lender
    
    Initial letter to house insurer advising of death and requesting policy continue
  - Pension funds, shares, insurance
    
    Initial letter to the Pension Service regarding State Pension
    
    Initial letter to Department of Work and Pensions regarding attendance allowance
    
    Initial letter to life insurance company
    
    Initial letter to investment company or unit trust company
    
    Initial letter to pension provider
    
    Initial letter to share registrars
  - Employer, accountant and other general matters
    
    Initial letter to employer
    
    Initial letter to accountant
    
    Initial letter to nursing home
    
    Initial letter to health insurer
    
    Initial letter to the Driver and Vehicle Licensing Agency
    
    Initial letter to car insurer
    
    Initial letter electricity account
    
    Initial letter gas account
    
    Initial letter water account
    
    Initial letter telephone account
    
    Initial letter to broadband or TV services account
    
    Initial letter general cancellation of membership
    
    Initial letter for general use - Addressee to be changed to suit
- If required - Where cause of death leads to compensation
  - Initial letter to insurer - Injury at work
  - Initial letter to third party insurer
- Estate Account Table of Assets and Liabilities
- BETA - AI Prompt for summarising the subscription services charging the deceased
- BETA - AI Prompt for notifying executors of potentially fraudulent transactions
G. Valuing the estate and inheritance tax
- Valuing the estate and inheritance tax
  
  Tax generally There are numerous important taxation issues to consider when acting in relation to the administration of an estate. For example, the continuation of a trust can produce tax advantages for children and remoter issue.
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- BETA - AI Prompt for estate assets summary including residue summary
- Trusts and inheritance tax
  
  HM Revenue & Customs has replaced the forms used to report chargeable lifetime and trust transfers. The new forms, to be used from 1 January 2025, are:
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- Deed of appointment before trust assets are vested
- ME TESTING
- Gifts and inheritance tax
  
  Personal representatives must investigate any gifts made by the deceased in the seven years preceding their death. If these gifts attract inheritance tax, they must be disclosed to HM Revenue & Customs. Individuals are entitled to an annual exemption of up to £3,000. Exemptions are also ...
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- Reporting requirements and time limits
  
  For deaths on or after 1 January 2022 Personal representatives dealing with excepted estates are required to provide the following as part of the probate application:
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- Using the Estate Administration app
- Inheritance Tax grossing up calculator
- Inheritance Tax guaranteed annuity calculator
- Inheritance Tax reduced rate calculator
- If required - Generating IHT Forms manually
  - (Legacy) Return of estate information (IHT205(2011-2021))
  - (Legacy) Claim to transfer unused nil rate band for excepted estates
  - (Legacy) Inheritance tax account
  - (Legacy) Inheritance tax account calculation
  - (Legacy) Probate summary
  - Letter to HMRC by solicitors instructed to act for estate
  - Authority of executor to HMRC to correspond with instructed solicitors
  - Letter to HMRC filing IHT 400 and 421 schedules - Tax paid
  - Letter to HMRC filing IHT 400 and 421 and schedules when no tax to pay
  - (Legacy) Direct payment scheme bank or building society account
  - Letter to bank sending IHT423 for payment
  - Library of schedules to IHT 400 inheritance tax account
    
    (Legacy) Domicile outside the United Kingdom
    
    (Legacy) Claim to transfer unused nil rate band
    
    (Legacy) Gifts and other transfers of value
    
    (Legacy) Jointly owned assets
    
    (Legacy) Houses, land, buildings and interests in land
    
    (Legacy) Bank and building society accounts and national savings and investments
    
    (Legacy) Household and personal goods
    
    (Legacy) Household and personal goods donated to charity
    
    (Legacy) Pensions
    
    (Legacy) Life assurance and annuities
    
    (Legacy) Listed stocks and shares
    
    (Legacy) Unlisted stocks and shares, and control holdings
    
    (Legacy) Business and partnership interests and assets
    
    (Legacy) Agricultural relief
    
    (Legacy) Interest in another estate
    
    (Legacy) Debts due to the estate
    
    (Legacy) Foreign assets
    
    (Legacy) Assets held in trust
    
    (Legacy) Debts owed by the deceased
    
    (Legacy) National Heritage assets, conditional exemption and maintenance funds
    
    (Legacy) Reduced rate of inheritance tax
    
    (Legacy) Claim for residence nil rate band (RNRB)
    
    (Legacy) Claim to transfer any unused residence nil rate band
- Library of less common HMRC forms and guidance notes
  - Guidance notes
    
    Notes to help you fill in form IHT205(2011)
    
    Notes to help you fill in form IHT207(2006)
    
    Guide to completing your Inheritance Tax account
    
    Working out the interest on Inheritance Tax payments
    
    How to fill in form IHT100a – GOV.UK
    
    How to fill in form IHT100b – GOV.UK
    
    How to fill in form IHT100b(death) – GOV.UK
    
    How to fill in form IHT100c – GOV.UK
    
    How to fill in form IHT100d – GOV.UK
    
    How to fill in form IHT100e – GOV.UK
    
    How to fill in form IHT100f – GOV.UK
    
    How to fill in form IHT100h – GOV.UK
    
    Notes for completion of form IHT500
    
    Notes for completing form R40
    
    Self Assessment tax returns for someone who has died
  - HMRC FORMS
    
    Gifts and other transfers of value IHT100a – HM Revenue & Customs
    
    Ending of a qualifying interest in possession IHT100b – HM Revenue & Customs
    
    Assets held in trust - IHT100b (death) - HM Revenue & Customs
    
    Relevant property trusts proportionate (exit) charge IHT100c – HM Revenue & Customs
    
    Relevant property trusts principal (10 year) charge IHT100d – HM Revenue & Customs
    
    Charge on special trusts IHT100e – HM Revenue & Customs
    
    Heritage exempt property IHT100f – HM Revenue & Customs
    
    Assets ceasing to be held in an age 18 to 25 trust IHT100h – HM Revenue & Customs
    
    (Legacy) Inheritance tax worksheet
    
    (Legacy) Gifts and other transfers of value (IHT 100A)
    
    (Legacy) Assets ceasing to be held on discretionary trusts - proportionate charge
    
    (Legacy) Non interest in possession settlements principal charge (ten-year anniversary)
    
    (Legacy) Cessation of conditional exemption - disposal of timber or underwood
    
    (Legacy) Application for an inheritance tax reference following a chargeable event
    
    (Legacy) Charges on special trusts
    
    (Legacy) Alternatively secured pension chargeable event
    
    (Legacy) Alternatively secured or unsecured pension fund - return of information
    
    (Legacy) Election for inheritance tax to apply to asset previously owned
    
    Domicile outside the UK
    
    Stocks and shares
    
    Debts due to the settlement or trust
    
    Life insurance and annuities
    
    Household and personal goods (D35)
    
    Land, buildings and interests in land
    
    Agricultural relief (D37)
    
    Business relief, business or partnership interests
    
    Foreign assets (D39)
    
    Continuation sheet for additional information
    
    Checklist
    
    Instrument of variation checklist
    
    (Legacy) Application for a clearance certificate
    
    Authorising your agent
    
    Claim for repayment of tax deducted from savings and investments
    
    Tax return (SA100(2020))
    
    Self Assessment forms and helpsheets
    
    Trust and estate tax return (SA900(2020))
    
    Trust and estate trade
    
    Trust and estate partnership
    
    Trust and estate UK property
    
    Trust and estate foreign
    
    Trust and estate capital gains
    
    Trust and estate non-residence
    
    Trust and estate charities
    
    Estate pension charges etc
    
    Tax return for trustees of registered pension schemes
H. Applying for a grant
- Grants
  
  The statutory framework governing inheritance is primarily found in the Administration of Estates Act 1925. For the period between death and the issue of a grant of representation, the deceased’s estate vests in the Public Trustee pursuant to s 9 of the Act.
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- Special and limited grants
  
  The court has discretionary power to issue special or limited grants of representation for a specific purpose or time. Such grants are usually an interim measure to deal with various aspects of the administration of an estate before the full grant of representation is issued.
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- Pre-lodgement enquiry form
- Applying for a grant
  
  The probate service has amended the application procedure for probate and other grants of representation by incorporating a statement of truth in the application forms PA1P and PA1A. Practitioners are required to state the type of application being made in section 2.15 of the forms, the grounds for ...
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- Usual online applications
  
  All straightforward applications for a grant of representation are made online in accordance with The Non-Contentious Probate (Amendment) Rules 2020. To apply for an online grant, firms need to Register for MyHMCTS to use HM Courts and Tribunals Service online services.
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- HMCTS Probate Applications Log in
- Usual paper applications
  
  The following documents are lodged when applying for a grant by post and are required to be sent to the Newcastle District Probate Registry only:
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- Probate Fees
- Where to send probate forms
- Application forms and statements of truth
  - Probate application letter - Non taxable estate
  - (Legacy) Return of estate information
  - Probate application letter - Taxable estate
  - Probate application - with a will
  - Probate application - without a will
  - Renunciation (Will)
  - Renunciation (Intestate – without a will)
  - Renunciation (with a Will - Partner/director/member/shareholder in a firm)
  - Statement of truth - Estates
  - Form content - Statement of truth - Executors
  - Form content - Statement of truth - Administrator with will annexed
  - Form content - Statement of truth - Attorney of executors
  - Form content - Statement of truth - Attorney of administrator
  - Form content - Statement of truth - Executors being two partners in law firm
  - Form content - Statement of truth - Executors being partners of an LLP law firm
  - Form content - Statement of truth - Executors being partners in a successor firm
  - Form content - Statement of truth for general form probate
  - Form content - Statement of truth for probate caeterorum
  - Form content - Statement of truth - Cessate probate where executor has reached age of majority
  - Form content - Statement of truth - Double probate
- Special and limited grants
  - Applying for special or limited grants
    
    For inheritance tax purposes, see requirements in the limited grant section of the HMRC Inheritance Tax Manual. Due to the nature of the grant, the matter will be urgent, and practitioners may wish to telephone the Inheritance Tax and probate section of HM Revenue & Customs to discuss the forms ...
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  - Statement of truth - Estates
  - Clause - Statement of truth - Administrators de bonis non administratis
  - Clause - Statement of truth - Cousins german of the whole blood
  - Clause - Statement of truth - Uncle or aunt of the whole blood
  - Clause - Statement of truth - Father or Mother
  - Clause - Statement of truth - Brother or sister of the whole blood
  - Clause - Statement of truth - Nephew or niece of the whole blood
  - Clause - Statement of truth - Brother or sister of the half blood
  - Clause - Statement of truth - Nephew or niece of the half blood
  - Clause - Statement of truth - Grandparents
  - Clause - Statement of truth - Ad colligenda bona - Limited grant
  - Clause - Statement of truth - Administration to attorney where executor lacks capacity
  - Clause - Statement of truth - Administrator awaiting outcome of probate claim
  - Clause - Statement of truth - Limited grant to bring or defend a claim
  - Clause - Statement of truth - Limited grant as colligenda bona
  - Minutes of meeting - Special grant of probate
- If required - Affidavits for application
  - Affidavit - Estates
  - Clause - Affidavit of search for other will
  - Clause - Affidavit as to due plight and execution
  - Clause - Affidavit of handwriting
  - Clause - Affidavit of identity of executor
  - Clause - Affidavit of unusual will execution - Signed at the foot
  - Clause - Affidavit of unusual will execution - Signed in attestation clause
  - Clause - Affidavit of unusual will execution - Acknowledgment of signature
  - Clause - Affidavit of unusual will execution - Imperfect signature, signed by mark, or foreign characters
  - Clause - Affidavit of unusual will execution - Signed by direction of testator
  - Clause - Affidavit of unusual will execution - Testator signature below witnesses
- Letter to client with draft statement of truth and documents for approval
- Schedule of assets and liabilities
- Letter to client enclosing copy of grant of representation
- Letter to council advising grant obtained
- If required - Non-proving executor
  - Letter to non-proving executor with copy draft grant and power reserved notice
  - Notice for non-proving executor
I. If required - Reseal
- Reseal
  
  A reseal is the process where the courts recognise a foreign grant of probate in England and Wales. It is used to release assets without the need to obtain a separate English grant of probate.
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- Reseal application letter
J. Other considerations
- Executor remuneration
  
  Executors are not automatically entitled to be paid for their time and services in the administration of an estate. The will may provide a specific gift or a share of the estate in return for carrying out the executorial duties. However, without such a provision, the executor has no claim to a fee.
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- Pensions
  
  Pension entitlements cannot be disposed of by will. They must therefore be disposed of by making expression of wish nominations. The pension provider must be given details of nominated beneficiaries using their stipulated form. Generally, if death is before the age of 75, beneficiaries will pay no ...
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- Capital gains tax
  
  There are numerous important taxation considerations when acting in relation to estates. Most lawyers are not tax specialists. It is best practice to advise clients, whether personal representatives or beneficiaries, to seek appropriate information from an accountant or specialist tax adviser. The ...
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K. Varying testamentary and intestate dispositions
- The statutory provisions
  
  The primary statutory provisions that can be effective for both inheritance and capital gains tax efficiencies include:
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- Parties to the deed of variation
  
  The following parties should be included in a deed of variation:
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- Statement of intent
  
  Post-death variations must contain a valid statement of intent that the provisions of s 142(1) of the Inheritance Tax Act 1984 apply. Failure to do so will mean that the variation will not be read back, and any tax benefit will be lost. Suggested wording is contained in note 5 of form IOV2 – ...
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- No consideration
  
  A post-death variation is not to be made for any consideration in money or money’s worth, save the making of a variation of another disposition: s 142(3) of the Act.
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- Charities
  
  A variation made in favour of a charity will not be read back unless the charity or the trustees of a charitable trust have been notified: ss 142(3A) - (3B) of the Act. It is suggested that the notification be made within two years of the deceased’s death. A notification can be done by ...
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- Library of HMRC inheritance tax manuals relating to variations
  - HM Revenue & Customs Inheritance Tax Manual 35081
  - HM Revenue & Customs Inheritance Tax Manual 35133
  - HM Revenue & Customs Inheritance Tax Manual 35045
  - HM Revenue & Customs Inheritance Tax Manual 35042
  - HM Revenue & Customs Inheritance Tax Manual 35021
- Variations
  
  Variations are flexible as they allow the beneficiary of a testamentary disposition to make a gift of that disposition to another person of their choice. The disposition is then effectively treated as a gift by the deceased. They can be made before or after the personal representatives have ...
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- Library of post death deeds of variation
  - Deed of variation by beneficiary in favour of a charity
  - Deed of variation by beneficiary redirecting sale proceeds of an estate asset
  - Deed of variation by executor and beneficiary severing beneficial joint tenancy with CGT readback
  - Deed of variation by beneficiary to obtain benefit of residence nil rate band
  - Deed of variation by original beneficiary, receiving beneficiary and executors
  - Deed of variation by beneficiary creating immediate post death interest for deceased's spouse or civil partner
  - Deed of variation converting a discretionary trust into an interest in possession
  - Deed of appointment by will trustees to change interest in possession beneficiary
  - Deed of appointment before trust assets are vested
  - Deed of variation - Probate
  - Deed of variation - Life tenant and remainderman
- Letter to personal representative client enclosing draft deed of variation for approval
- Letter to beneficiary client enclosing draft deed of variation for approval
- Letter to HMRC - Notice of deed of variation
- Letter to charity beneficiary - Notice of deed of variation
- Letter to HMRC supplying evidence of notification to charity
- Disclaimers
  
  A disclaimer gives a beneficiary the ability to refuse to accept a testamentary gift. However, they are rarely used as they are considered to be inflexible due to the following limitations:
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- Library of deeds of disclaimer
  - Deed of disclaimer by executors of life interest upon death of life tenant
  - Deed of disclaimer under will or on intestacy
- Letter to personal representative client enclosing draft deed of disclaimer for approval
- Letter to beneficiary client enclosing draft deed of disclaimer for approval
- Variations, disclaimers and tax
  
  Variations and inheritance tax Section 142 of the Inheritance Tax Act 1984 deals with post-death variations in relation to inheritance tax. Provided that the requirements of s 142 are met, the Act will apply as if the deceased had effected the variation. Furthermore, the variation will ...
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- Instrument of variation checklist
- Examples using post-death variations and disclaimers
  
  Benefitting from the residence nil rate band The residence nil rate band legislation came into force on 6 April 2017. Therefore, with wills made before that date, consideration will be required to enable the estate to benefit from the allowance and possibly reduce the estate’s inheritance tax ...
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L. Dealing with assets and administration
- Dealing with assets and liabilities
  
  Establishment of an estate bank account Whether acting on their account or with the assistance of their lawyers, it is prudent for personal representatives to set up an interest-bearing estate account to consolidate funds and assist in the smooth running of the administration.
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- Letter to client enclosing withdrawal forms and authorities
- Letter to client advising assets sold
- Claim letter to bank or building society
- Property
  - Application to remove from the register the name of a deceased joint proprietor
  - Letter to council exemption of property from tax pending sale
- Insurance
  - Letter to house insurer cancelling policy
  - Claim letter to life insurance company
- Shares
  - Executor administrator authority to sell shares
  - Letter requesting sale of shareholding
  - Stock transfer form
  - Letter to transfer shareholding
  - Claim letter to share registrars
- General
  - General claims letter
  - General letter payment of accounts
  - General reminder letter
- Payment of debts
  
  Check that all debts have been paid. Look into whether a deceased estate notice is required. Check whether sufficient money is available to pay ongoing debts and liabilities – for example, taxation, rates and taxes on real estate, accountancy fees, legal fees, share portfolio management fees.
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- Letter to client reimbursing expenses
- General letter payment of accounts
- If required - Less common deeds
  - Deed of appropriation
M. Distribution
- BETA - AI Prompt for estate assets summary including residue summary
- Distribution
  
  While distribution would usually be effected within one year of death, known as the executor’s year, s 44 of the Administration of Estates Act 1925 provides that this deadline can be extended.
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- Place a notice - The Gazette
- Letter to beneficiary enclosing specific bequest
- Payment of legacy and interim distribution
  
  Payment of legacy A general legacy is a gift that does not refer to the testator’s actual property, for example, a basic monetary gift of ‘£1,000 to my son’.
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- BETA - AI Prompt for letter to executors to propose final estate distribution
- If required - Distribution within six months of grant
  - Letter to executor making distribution within six months of grant
  - Distribution summary
- Letter to beneficiary for their bank details
- Letter to beneficiary with interim distribution and interim estate account
- Enclosure - Receipt of distribution
- Accounts
  
  Keeping proper accounts Legal personal representatives are required to keep proper accounts and provide a set of estate accounts at the end of the administration to provide clear and accurate information to the beneficiaries. What is proper will depend on the nature of the estate. The minimum ...
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- Letter to client with final estate accounts and certificate of deduction of income tax R185 for signature
- Distribution summary
- Statement of income from estates
- Personal representative declaration
- Letter to beneficiary with final distribution
- If required - Deed of release and indemnity
  - Deed of release and indemnity
N. Finalising the matter
- Letter to client finalising the matter
- BETA - AI Prompt for final estate account summary
- Estate administration summary pack
- Example invoice
- Invoice recital - Estates
- Enclosure - Explaining the bill
- Closing the file
- File closing checklist
- File review form - General
Further information
Comments and suggestions for By Lawyers

ALERTS - Nil
Full Commentary - Letters of Administration
Reference materials
- Electronic Signing and Witnessing
- 101 Succession Answers
- Looking to the Future
Overview

This commentary sets out the law on intestacy and the statutory rules that apply when the deceased has either:
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Summary of the process

The usual steps in acting for the administrator on the grant of letters of administration are:
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A. Getting the matter underway
- Client engagement
  
  Where a firm is to act for several administrators, or executors, the clients should be advised that the firm cannot act, or continue acting, where there is a material conflict of interest. Although executors may suggest that one of them be the main point of contact, care should be taken when ...
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- File cover sheet - Letters of administration
- To do list - Estates
- First steps
- Retainer instructions - Estates
- Compliance documents
  - Client Due Diligence and Anti-money Laundering Guidance
  - Client Details, Identity Verification and Source of Funds
  - Conflict of interest check
  - Client and matter risk assessment
  - If required – Reporting an issue
    
    Anti-money laundering internal disclosure
- Initial letter to client enclosing Client Care and Terms of Business and authority
- Enclosures for intial letter to client
  - Client care information
  - Terms of business
  - Scope of work - Estates
  - A summary of the process for dealing with estates
- Initial letter to administrator explaining duties
- If required - Authority previous solicitor
  - Letter to another solicitor with authority to obtain documents
  - Enclosure - Authority of administrator to obtain documents from another solicitor
- Locating a will
  
  On being notified of the death, a practitioner must investigate whether the deceased left a valid will. In most cases, a will is easy to find among the deceased’s possessions or files. It may be brought to the firm by an executor or retrieved from the firm’s safe storage facility.
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- Death, remains, and funeral wishes
  
  Cause of death Considering of the cause of death will help determine if there is a cause of action for compensation or damages, for example, if death resulted from a motor vehicle or work accident.
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- Funeral expenses
  
  Most banks will allow funds to be withdrawn from a deceased’s bank account to pay funeral expenses before a grant is obtained on presentation of the death certificate and a funeral director’s invoice. An individual who arranges the funeral is entitled to be reimbursed for any reasonable expenses ...
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- Is a grant required?
  
  There is no statutory requirement to obtain a grant of representation. Most banks and financial institutions will not insist on a grant if the amount they hold for the deceased is between £25,000 and £50,000. In these circumstances, they will normally accept evidence of death and entitlement, and ...
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- Time and costs estimates
- If required - Letter to client varying the Client Care and Terms of Business
  - Letter to client varying the Client Care and Terms of Business
- General deeds, agreements, statements, declarations, consents, and execution clauses
  - Deeds and agreements
  - Deeds
    
    Deed for general use
    
    Deed of assignment of agreement
    
    Deed of assignment of agreement with consent
    
    Deed of assignment of an insurance policy
    
    Deed of assignment of equitable interest in residential land
    
    Deed of gift
    
    Deed of guarantee
    
    Deed of release
    
    Deed of release and grant
    
    General deed of indemnity
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Boundary agreement
    
    Confidentiality agreement
    
    Construction agreement
    
    Heads of agreement
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Statements and declarations
    
    Statement of truth
    
    Statement of truth - High Court
    
    Statutory declaration
    
    Statutory declaration of solvency
    
    Affidavit - General
    
    Exhibit sheet for affidavits - General
    
    Witness statement - Family matters
    
    Exhibit sheet to witness statement - Family matters
    
    Witness statement - Civil matters
    
    Exhibit sheet to witness statement - Civil matters
  - Execution clauses
    
    Execution clauses - Agreements and contracts
    
    Execution clauses - Deeds
    
    Execution clauses - Overseas companies
  - Consents
    
    If required - Personal data consent - General
    
    Letter to client enclosing consent - General
    
    Letter to third party enclosing consent - General
    
    General letter enclosing client consent
    
    General letter enclosing third party consent
    
    Consent to provide information - General
    
    Consent to provide information - General - Third party
    
    If required - Personal data consent - Health professional
    
    Letter to client enclosing consent - Health professional
    
    Letter to third party enclosing consent - Health professional
    
    Letter to doctor enclosing client consent
    
    Letter to doctor enclosing third party consent
    
    Consent to provide information - Health professional
    
    Consent to provide information - Health professional - Third party
    
    Change of name
    
    Change of name deed for an adult - Concise
    
    Change of name deed for a minor - Concise
    
    If required - Enrolment by an adult
    
    Change of name deed for an adult - For enrolment
    
    Statutory declaration - Enrolment of adult change of name deed
    
    Notice for the London Gazette on the change of name of an adult
    
    Consent to enrolment of change of name of an adult
    
    If required - Enrolment by a minor
    
    Change of name deed for a minor - For enrolment
    
    Statutory declaration - Enrolment of minor change of name deed
    
    Affidavit of best interest for the change of name of a minor
    
    Consent to enrolment of change of name of a minor
B. Gathering information
- Beneficiaries
  - Beneficiaries
    
    Attesting witness Section 15 of the Wills Act 1837 provides that any gifts to an attesting witness are void. If a beneficiary is a witness to the testator’s signature, then any gift to that beneficiary is void. The will remains valid, with only the gift to the witnessing beneficiary failing.
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  - Initial letter to specific beneficiary
  - Initial letter to residuary beneficiary
  - Beneficiary privacy notice
  - Letter to charity beneficiary
  - Initial letter to charity residuary beneficiary
- Library of initial probate letters to asset holders
  - Banks, building societies, debtors and creditors
    
    Initial letter to bank or building society
    
    Initial letter to creditor
    
    Initial letter to debtor
  - Property
    
    Initial letter to valuer
    
    Initial letter to local council regarding council tax
    
    Initial letter to mortgage lender
    
    Initial letter to house insurer advising of death and requesting policy continue
  - Pension funds, shares, insurance
    
    Initial letter to the Pension Service regarding State Pension
    
    Initial letter to Department of Work and Pensions regarding attendance allowance
    
    Initial letter to life insurance company
    
    Initial letter to investment company or unit trust company
    
    Initial letter to pension provider
    
    Initial letter to share registrars
  - Employer, accountant and other general matters
    
    Initial letter to employer
    
    Initial letter to accountant
    
    Initial letter to nursing home
    
    Initial letter to health insurer
    
    Initial letter to the Driver and Vehicle Licensing Agency
    
    Initial letter to car insurer
    
    Initial letter electricity account
    
    Initial letter gas account
    
    Initial letter water account
    
    Initial letter telephone account
    
    Initial letter to broadband or TV services account
    
    Initial letter general cancellation of membership
    
    Initial letter for general use - Addressee to be changed to suit
- If required - Where cause of death leads to compensation
  - Initial letter to insurer - Injury at work
  - Initial letter to third party insurer
- Estate Account Table of Assets and Liabilities
C. Intestacy
- Intestacy
  
  Intestacy arises when the deceased, known as the intestate, leaves no will, or the will does not effectively dispose of all of the deceased’s estate. This is known as a total intestacy. It can also arise when only part of the estate is dealt with, for example, when the beneficiary of a specific ...
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- The statutory rules of intestacy
  
  The succession to real and personal estate on intestacy is governed by s 46 of the Administration of Estates Act 1925. The residuary estate of an intestate should be distributed or held on trust as follows:
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- Executors and administrators
  
  Wills appoint executors, and the court appoints administrators, collectively known as personal representatives. As a will appoints an executor, their identity is known. On the other hand, there are numerous possibilities as to who might apply for letters of administration. See The order of priority ...
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- Postal search of the probate records of England and Wales
- If required - Renunciation and power reserved
  - Letter to executor with renunciation
  - Renunciation of executors and administrators
    
    If an executor appointed by a will does not wish to apply for a grant, they must sign a renunciation which is then filed with a subsequent application for a grant by someone else. See form PA15 – Renunciation (Will) for executors and form PA16 – Renunciation (Intestate – Without a Will) for ...
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  - Renunciation (Will)
  - Renunciation (Intestate – without a will)
- If required - Caveats
  - Caveats on grants and standing searches
    
    Caveats Anyone who has an interest in the deceased’s estate may apply for a caveat, regardless of whether the deceased left a will or died intestate. This may be done by lodging a caveat, which ensures that the caveator is notified and has the opportunity to approach the court before the court ...
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  - Application to stop a grant of representation, or extend a stop on a grant of representation
  - Warning to caveator
  - Letter to client regarding the caveat
  - Letter to caveator's solicitor for details
  - Appearance to warning or citation
- Hotchpot
  
  Hotchpot was a notion that, to achieve equality and fairness between the children of an intestate, any lifetime benefits given to a child or children should be taken into account when distributing the residuary estate. In practice, hotchpot proved to be problematic, not least because the parent may ...
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D. Valuing the estate and inheritance tax
- Valuing the estate and inheritance tax
  
  Tax generally There are numerous important taxation issues to consider when acting in relation to estates. For example, the continuation of a trust has scope to produce tax advantages for children and remoter issue.
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- Trusts and inheritance tax
  
  HM Revenue & Customs has replaced the forms used to report chargeable lifetime and trust transfers. The new forms, to be used from 1 January 2025, are:
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- Gifts and inheritance tax
  
  HM Revenue & Customs has replaced the forms used to report chargeable lifetime and trust transfers. The new forms, to be used from 1 January 2025, are:
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- Reporting requirements and time limits
  
  For deaths on or after 1 January 2022 Personal representatives dealing with excepted estates are required to provide the following as part of the probate application:
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- Using the Estate Administration app
- Inheritance Tax grossing up calculator
- Inheritance Tax guaranteed annuity calculator
- Inheritance Tax reduced rate calculator
- If required - Generating IHT Forms manually
  - (Legacy) Return of estate information (IHT205(2011-2021))
  - (Legacy) Claim to transfer unused nil rate band for excepted estates
  - (Legacy) Inheritance tax account
  - (Legacy) Inheritance tax account calculation
  - (Legacy) Probate summary
  - Letter to HMRC filing IHT 400 and 421 schedules - Tax paid
  - Letter to HMRC filing IHT 400 and 421 and schedules when no tax to pay
  - (Legacy) Direct payment scheme bank or building society account
  - Letter to bank sending IHT423 for payment
- Library of schedules to IHT 400 inheritance tax account
  - (Legacy) Domicile outside the United Kingdom
  - (Legacy) Claim to transfer unused nil rate band
  - (Legacy) Gifts and other transfers of value
  - (Legacy) Jointly owned assets
  - (Legacy) Houses, land, buildings and interests in land
  - (Legacy) Bank and building society accounts and national savings and investments
  - (Legacy) Household and personal goods
  - (Legacy) Household and personal goods donated to charity
  - (Legacy) Pensions
  - (Legacy) Life assurance and annuities
  - (Legacy) Listed stocks and shares
  - (Legacy) Unlisted stocks and shares, and control holdings
  - (Legacy) Business and partnership interests and assets
  - (Legacy) Agricultural relief
  - (Legacy) Interest in another estate
  - (Legacy) Debts due to the estate
  - (Legacy) Foreign assets
  - (Legacy) Assets held in trust
  - (Legacy) Debts owed by the deceased
  - (Legacy) National Heritage assets, conditional exemption and maintenance funds
  - (Legacy) Reduced rate of inheritance tax
  - (Legacy) Claim for residence nil rate band (RNRB)
  - (Legacy) Claim to transfer any unused residence nil rate band
- Library of less common HMRC forms and guidance notes
  - Guidance notes
    
    Notes to help you fill in form IHT205(2011)
    
    Notes to help you fill in form IHT207(2006)
    
    Guide to completing your Inheritance Tax account
    
    Working out the interest on Inheritance Tax payments
    
    How to fill in form IHT100a – GOV.UK
    
    How to fill in form IHT100b – GOV.UK
    
    How to fill in form IHT100b(death) – GOV.UK
    
    How to fill in form IHT100c – GOV.UK
    
    How to fill in form IHT100d – GOV.UK
    
    How to fill in form IHT100e – GOV.UK
    
    How to fill in form IHT100f – GOV.UK
    
    How to fill in form IHT100h – GOV.UK
    
    Notes for completion of form IHT500
    
    Notes for completing form R40
    
    Self Assessment tax returns for someone who has died
  - HMRC FORMS
    
    Gifts and other transfers of value IHT100a – HM Revenue & Customs
    
    Ending of a qualifying interest in possession IHT100b – HM Revenue & Customs
    
    Assets held in trust - IHT100b (death) - HM Revenue & Customs
    
    Relevant property trusts proportionate (exit) charge IHT100c – HM Revenue & Customs
    
    Relevant property trusts principal (10 year) charge IHT100d – HM Revenue & Customs
    
    Charge on special trusts IHT100e – HM Revenue & Customs
    
    Heritage exempt property IHT100f – HM Revenue & Customs
    
    Assets ceasing to be held in an age 18 to 25 trust IHT100h – HM Revenue & Customs
    
    (Legacy) Inheritance tax worksheet
    
    (Legacy) Gifts and other transfers of value (IHT 100A)
    
    (Legacy) Assets ceasing to be held on discretionary trusts - proportionate charge
    
    (Legacy) Non interest in possession settlements principal charge (ten-year anniversary)
    
    (Legacy) Cessation of conditional exemption - disposal of timber or underwood
    
    (Legacy) Application for an inheritance tax reference following a chargeable event
    
    (Legacy) Charges on special trusts
    
    (Legacy) Alternatively secured pension chargeable event
    
    (Legacy) Alternatively secured or unsecured pension fund - return of information
    
    (Legacy) Election for inheritance tax to apply to asset previously owned
    
    Domicile outside the UK
    
    Stocks and shares
    
    Debts due to the settlement or trust
    
    Life insurance and annuities
    
    Household and personal goods (D35)
    
    Land, buildings and interests in land
    
    Agricultural relief (D37)
    
    Business relief, business or partnership interests
    
    Foreign assets (D39)
    
    Continuation sheet for additional information
    
    Checklist
    
    Instrument of variation checklist
    
    (Legacy) Application for a clearance certificate
    
    Authorising your agent
    
    Claim for repayment of tax deducted from savings and investments
    
    Tax return (SA100(2020))
    
    Self Assessment forms and helpsheets
    
    Trust and estate tax return (SA900(2020))
    
    Trust and estate trade
    
    Trust and estate partnership
    
    Trust and estate UK property
    
    Trust and estate foreign
    
    Trust and estate capital gains
    
    Trust and estate non-residence
    
    Trust and estate charities
    
    Estate pension charges etc
    
    Tax return for trustees of registered pension schemes
E. Applying for a grant
- Applying for a grant
  
  Applying for a limited grant For inheritance tax purposes, see the limited grant section of the HM Revenue & Customs Inheritance Tax Manual.
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- HMCTS Probate Applications Log in
- Application
  - Intestacy application letter - Non taxable estate
  - (Legacy) Return of estate information (IHT205(2011-2021))
  - (Legacy) Return of estate information
  - Intestacy application letter - Taxable estate
- Application forms & Statements of truth
  - Probate application - with a will
  - Probate application - without a will
  - Probate Fees
  - Where to send probate forms
  - Power of attorney (Will)
  - Medical certificate
  - Renunciation (Will)
  - Renunciation (Intestate – without a will)
  - Statement of truth - Estates
  - Clause - Statement of truth - Administrator
  - Form content - Statement of truth - Administrator with will annexed
  - Clause - Statement of truth - Attorney of administrator
  - Form content - Statement of truth - Administrators de bonis non administratis
  - Clause - Statement of truth - Cousins german of the whole blood
  - Clause - Statement of truth - Ad colligenda bona - Limited grant
  - Minutes of meeting - Special grant of probate
- If required - Affidavits for application
  - Affidavit - Estates
  - Clause - Affidavit of search for other will
  - Clause - Affidavit as to due plight and execution
  - Clause - Affidavit of handwriting
  - Clause - Affidavit of identity of executor
  - Clause - Affidavit of unusual will execution - Signed at the foot
  - Clause - Affidavit of unusual will execution - Signed in attestation clause
  - Clause - Affidavit of unusual will execution - Acknowledgment of signature
  - Clause - Affidavit of unusual will execution - Imperfect signature, signed by mark, or foreign characters
  - Clause - Affidavit of unusual will execution - Signed by direction of testator
  - Clause - Affidavit of unusual will execution - Testator signature below witnesses
F. If required - Reseal
- Reseal
  
  A reseal is the process where the courts recognise a foreign grant of probate in England and Wales. It is used to release assets without the need to obtain a separate English grant of probate. It may be required when the deceased made a will in a foreign jurisdiction. A grant of probate made in ...
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- Reseal application letter
G. Other considerations
- Pensions
  
  Pension entitlements cannot be disposed of by will and must therefore be disposed of by making ‘expression of wish’ nominations. The pension provider must be given details of nominated beneficiaries using their stipulated form. If there are no nominated beneficiaries and no dependants, any pension ...
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- Capital gains tax
  
  There are numerous important taxation considerations when acting in relation to estates. Most lawyers are not tax specialists. The best advice they can give their clients, whether they are a beneficiary or responsible for administering the estate, is to seek appropriate information and guidance ...
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H. Varying testamentary and intestate dispositions
- The statutory provisions
  
  The primary statutory provisions that can be effective for both inheritance and capital gains tax efficiencies include:
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- Library of HMRC inheritance tax manuals relating to variations
  - HM Revenue & Customs Inheritance Tax Manual 35081
  - HM Revenue & Customs Inheritance Tax Manual 35133
  - HM Revenue & Customs Inheritance Tax Manual 35045
  - HM Revenue & Customs Inheritance Tax Manual 35042
  - HM Revenue & Customs Inheritance Tax Manual 35021
- Variations
  
  Variations are flexible as they allow the beneficiary of a testamentary disposition to make a gift of that disposition to another person of their choice. The disposition is then effectively treated as a gift by the deceased. They can be made before or after the personal representatives have ...
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- Letter to personal representative client enclosing draft deed of variation for approval
- Letter to beneficiary client enclosing draft deed of variation for approval
- Letter to HMRC - Notice of deed of variation
- Letter to charity beneficiary - Notice of deed of variation
- Letter to HMRC supplying evidence of notification to charity
- Library of post death deeds of variation
  - Deed of variation by beneficiary in favour of a charity
  - Deed of variation by beneficiary redirecting sale proceeds of an estate asset
  - Deed of variation by executor and beneficiary severing beneficial joint tenancy with CGT readback
  - Deed of variation by beneficiary to obtain benefit of residence nil rate band
  - Deed of variation by original beneficiary, receiving beneficiary and executors
  - Deed of variation by beneficiary creating immediate post death interest for deceased's spouse or civil partner
  - Deed of variation converting a discretionary trust into an interest in possession
  - Deed of appointment by will trustees to change interest in possession beneficiary
  - Deed of appointment before trust assets are vested
  - Deed of variation - Probate
  - Deed of variation - Life tenant and remainderman
- Disclaimers
  
  A disclaimer gives a beneficiary the ability to refuse to accept a testamentary gift. However, they are rarely used as they are considered inflexible due to the following limitations:
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- Letter to personal representative client enclosing draft deed of disclaimer for approval
- Letter to beneficiary client enclosing draft deed of disclaimer for approval
- Library of deeds of disclaimer
  - Deed of disclaimer by executors of life interest upon death of life tenant
  - Deed of disclaimer under will or on intestacy
- Instrument of variation checklist
- Examples using post-death variations and disclaimers
  
  Benefitting from the residence nil rate band If the will was made before 6 April 2017, when the residence nil rate band legislation came into effect, a deed of variation should be considered to enable the estate to benefit from the allowance and possibly reduce the estate’s inheritance tax ...
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I. Dealing with assets and administration
- Dealing with assets and liabilities
  
  Establishment of an estate bank account Whether acting on their own account or with the assistance of their lawyers, it is prudent for personal representatives to set up an interest-bearing estate account to consolidate funds and assist in the smooth running of the administration.
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- Letter to client enclosing withdrawal forms and authorities
- Letter to client advising assets sold
- Claim letter to bank or building society
- Property
  - Application to remove from the register the name of a deceased joint proprietor
  - Letter to council exemption of property from tax pending sale
- Insurance
  - Letter to house insurer cancelling policy
  - Claim letter to life insurance company
- Shares
  - Executor administrator authority to sell shares
  - Letter requesting sale of shareholding
  - Stock transfer form
  - Letter to transfer shareholding
  - Claim letter to share registrars
- General
  - General claims letter
  - General letter payment of accounts
  - General reminder letter
- Payment of debts
  
  Check that all debts have been paid. Look into whether a deceased estate notice is required. Check whether sufficient money is available for payment of ongoing debts and liabilities – for example, taxation, rates and taxes on real estate, accountancy fees, legal fees, share portfolio management ...
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- Letter to client reimbursing expenses
- General letter payment of accounts
J. Distribution
- Distribution
  
  On a total intestacy, distribution of the intestate’s estate will be administered as provided for in the statutory rules of intestacy. In a partial intestacy, the part of the estate that is not validly dealt with by the will is to be administered as provided for in the statutory rules of intestacy.
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- Letter to Land Registry with enclosure - General
- Application to remove from the register the name of a deceased joint proprietor
- Letter to council exemption of property from tax pending sale
- Letter to Land Registry enclosing AP1 to change the register and supporting documents
- Application to change the register
- Assent of whole of registered title(s) by personal representative(s)
- Payment of legacy and interim distribution
  
  Payment of legacy A general legacy is a gift that does not refer to the testator’s actual property, for example, a basic monetary gift of ‘£1,000 to my son’.
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- If required - Distribution within six months of grant
  - Letter to executor making distribution within six months of grant
  - Distribution summary
- Letter to beneficiary for their bank details
- Letter to beneficiary enclosing specific bequest
- Letter to beneficiary with interim distribution and interim estate account
- Enclosure - Receipt of distribution
- Accounts
  
  Keeping proper accounts Legal personal representatives are required to keep proper accounts and provide a set of estate accounts at the end of the administration to provide clear and accurate information to the beneficiaries. What is proper will depend on the nature of the estate. The minimum ...
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- Letter to client with final estate accounts and certificate of deduction of income tax R185 for signature
- Distribution summary
- Statement of income from estates
- Letter to beneficiary with final distribution
- If required - Estates administration summary pack
  - Estate administration summary pack
  - Personal representative declaration
- If required - Deed of release and indemnity
  - Deed of release and indemnity
K. Finalising the matter
- Letter to client finalising the matter
- Example invoice
- Invoice recital - Estates
- Enclosure - Explaining the bill
- Closing the file
- File closing checklist
- File review form - General
Further information
Comments and suggestions for By Lawyers

101 Succession Answers
Estates
- Accounts
  
  Duty to keep accounts The personal representatives of an estate have a legal duty to keep accounts of the administration of an estate: s 25 of the Administration of Estates Act 1925.
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- Ademption
  
  The term ademption refers to when a specific gift to a named beneficiary is defeated – adeemed – because the property which is the subject of the gift no longer exists. For example, this might apply where a testator makes a specific gift of property to a beneficiary, but then after making the will ...
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- Administration
  
  Personal representatives administer an estate by collecting in the assets, paying the debts, and distributing the estate according to the will or the intestacy rules. Part III of the Administration of Estates Act 1925 sets out the principles for the administration of the assets.
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- Administrator
  
  Where there is no valid will r 22 of The Non-Contentious Probate Rules 1987 sets out who may act as the personal representative. The grant of letters of administration is the document that confers the authority to administer the estate. The personal representative is referred to as the ...
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- Administrator duties
  
  If the deceased did not make a will or the will does not effectively appoint executors the person entitled to act as a personal representative is referred to as an administrator, but they have no authority until the court issues the grant. The deceased's assets vest in the Public Trustee until the ...
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- Application for a grant of probate or letters of administration
  
  Any need to apply A grant of representation is not always required. There is no legislative requirement to apply for a grant in every case.
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- Application to revoke a grant of probate or letters of administration
  
  An application may be made to the High Court to revoke a grant of probate or letters of administration and is governed by the current rules set out in Part 57 of the Civil Procedure Rules. A probate claim in the High Court is brought by a claim form issued out of Chancery Chambers in London or ...
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- Application with the will attached
  
  Where the will is invalid or where the named executor is unavailable, and no substitute is appointed, then an application for a grant of letters of administration with the will annexed needs to be made. Most commonly in this scenario the applicant is one of the beneficiaries under the will, but it ...
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- Assets – Transfer or transmission
  
  Real property
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- Assets of the estate
  
  Beneficiary in possession of estate property The personal representatives have a duty to call in the estate's assets, including any property held by beneficiaries.
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- Beddoe application
  
  A Beddoe application is a court application made by the executors or trustees requesting directions on whether or not to proceed with a claim made by or against a third party. It is a separate matter from the main claim. The advantage of a Beddoe application is the potential costs protection. If ...
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- Beneficiaries
  
  Claims by a beneficiary A beneficiary who believes there is a problem with the will, such as a contention that the deceased did not have capacity when the will was made, should be advised by the estate’s legal adviser to seek independent advice.
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- Benjamin orders
  
  See Presumption of death below.
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- Bequests
  
  A bequest is a gift or legacy under a will. See also Gifts to charities below.
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- Bona vacantia
  
  This means vacant goods and is the name given to ownerless property which ultimately passes to the Crown, except in Lancaster and Cornwall where they vest in the Duchy of Lancaster and the Duchy of Cornwall, respectively. The Treasury Solicitor deals with bona vacantia that pass to the Crown. Bona ...
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- Burials, cremations and funerals
  
  Funeral wishes It is quite common for a will to include directions as to how the testator wishes their remains to be disposed of, or even their detailed wishes for the conduct of a funeral service.
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- Capacity
  
  Challenges to a will because the testator lacked capacity are rarely successful. The authoritative case on capacity is Banks v Goodfellow (1870) LR 5 QB 549, which stated:
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- Caveats
  
  A caveat is a written notice given by someone known as the caveator to ensure that a grant is not issued in a deceased person's estate without the caveator being notified. Rule 44 of The Non-Contentious Probate Rules 1987 governs the procedure for entering a caveat and the stages that follow ...
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- Codicils
  
  A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil are read together to determine the terms of the will. If the testator has made a codicil or codicils they are included in the application for the grant of representation alongside the will.
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- Co-executors – Authority to act
  
  The office of a sole executor is regarded as being an individual. However, in circumstances where the will appoints more than one executor that appointment will be jointly held between them to act alone and bind the estate only with the consent of the remaining appointed executors.
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- Contested will matters
  
  An interested person can oppose an application for a grant of probate or letters of administration by seeking to impugn the will which is the subject of the application. There are standard grounds for challenging a will:
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- Construction of the will
  
  A question may arise as to whether the specific gift remains in existence at the date of the testator’s death. For example, if property is sold that was the subject of the specific gift, should the sale proceeds still go to the named beneficiary to satisfy the specific bequest? In such a scenario ...
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- Contracts entered into or completed before probate or administration is granted
  
  Ability of executor to intermeddle In some circumstances it may be advantageous for the estate if a contract is entered into before the formal grant of representation is obtained. A personal representative may elect to do so, which would constitute intermeddling with estate assets and is perfectly ...
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- Death
  
  Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased.
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- Death of joint executor
  
  If one executor dies before a grant is made the surviving executor can and should proceed unless the will says otherwise. Once appointed as legal personal representative an executor will undertake executorial duties in the first instance and then, if the will creates a trust, will be a trustee. If ...
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- Death of single executor
  
  If the testator has made no provision in the will for an alternate or substitute executor and the executor named in the will dies before a grant of probate is obtained, the position is the same as if no executor had been appointed. A beneficiary can then apply for a grant of letters of ...
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- Delegation by executor
  
  An executor may commonly delegate administrative functions relating to the administration of an estate. For example, the executor may appoint a legal adviser to represent the estate and appoint accountants to assist in the administration. Under r 31 of The Non-Contentious Probate Rules 1987 an ...
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- Executors
  
  Where a will appoints an executor they have the greatest entitlement to apply for a grant of probate under the order of priority set out in r 20 of The Non-Contentious Probate Rules 1987.
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- Genealogists
  
  A genealogist is a person or organisation whose aim is to hunt through government records for names of people who have died intestate with no obvious living relatives. There is a 12-year time limit before the Crown (or the Duchies of Cornwall and Lancaster) can claim the estate as their own. ...
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- Gifts to charities
  
  Clauses making bequests to charities often try to specify how it is to be used. However most charities prefer a general legacy that allows them discretion as to how the gift is applied according to their operational requirements. In practical terms once such a bequest is paid to the charity it is ...
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- Grants
  
  There are three main types of grant of representation:
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- Hotchpot
  
  A hotchpot clause is used in wills and trusts to ensure fairness and equality between the beneficiaries by taking into account any amounts already received through lifetime gifts or loans. When combined with the gifts received under the will all beneficiaries end up with the same benefit. The ...
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- Insolvent Estates
  
  Section 421(4) of the Insolvency Act 1986 defines the estate of a deceased person as insolvent ‘if, when realised, it will be insufficient to meet in full all the debts and liabilities to which it is subject’. Estate liabilities include conditional and future obligations.
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- Intermeddling
  
  The term intermeddling is used to describe normal actions taken in relation to an estate. By carrying out these actions an individual implies their acceptance of the role of personal representative. This is acceptable where the individual is entitled to the role, but by intermeddling without ...
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- Intestacy
  
  An intestate is a person who dies and does not leave a wholly valid will.
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- Joint mortgage responsibilities
  
  Although upon the death of a joint proprietor the proprietary interest is lost to the surviving joint tenants together with the obligation to contribute to the mortgage, the estate may remain liable under any personal covenants of a mortgage.
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- Joint ownership
  
  See also Assets – Joint ownership of assets above. Co-ownership of the legal title in a property is always on the basis of a joint tenancy. The legal title is also referred to as the legal estate or interest. Legal owners hold property on trust for the beneficial owners.
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- Larke v Nugus letters
  
  The case of Larke v Nugus [2000] WTLR 1033 concerned a request for information about the circumstances surrounding the making of a will. It was held that the practitioner involved with the drawing up and execution of the will should assist by providing details. Requests of this type are often made ...
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- Letters of administration
  
  See Application for a grant of probate or letters of administration above. See also Administrator, Distribution of intestate estate and Grants above.
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- Litigation
  
  One of the duties of the personal representatives of an estate is to manage and, if possible, compromise any claims against the estate. That can be an onerous duty involving a challenging balancing exercise between the merits and likelihood of success of the claim on the one hand and the necessity ...
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- Missing will
  
  It is possible to obtain a grant for administration based only upon a copy of a missing will. When an original will or codicil is lost, destroyed or damaged without the intention of revoking it an application may be made for an order for leave to prove the will as contained in a copy, ...
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- Personal liability of the executor
  
  Until a personal representative has obtained a grant of representation or has elected to act they cannot be sued in that capacity. Being named as executor in a will is not sufficient. If individuals have not taken any action they must be given an opportunity to renounce before a claim can be ...
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- Property of the estate
  
  See Assets above.
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- Rectification of a will
  
  It is possible to apply for rectification of a will that fails to carry out the testator's intentions because of a clerical error or a failure to understand the testator's instructions. An application for rectification must be made within six months from the date of the grant of representation in ...
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- Renunciation as executor
  
  There is no compulsion upon someone to accept the role of executor or administrator. The named executor, or one of multiple named executors, may renounce their office before any application for a grant is made. A spouse or civil partner may renounce their right to be an administrator allowing a ...
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- Replacement or removal of an executor
  
  The court may exceptionally pass over an executor and make a grant of letters of administration with will annexed to another person under s 116 of the Senior Courts Act 1981. For an order to be made there must be exceptional circumstances that make it necessary or expedient to pass over the ...
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- Resignation of executor
  
  An executor may renounce the office before applying for a grant. See Renunciation as executor above.
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- Revocation
  
  See Application to revoke a grant of probate or letters of administration above.
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- Small estates
  
  Most banks and other financial institutions are willing to release funds from an account or deal with personal property without the need for a grant subject to their prescribed limits. As these limits differ between banks some estates with few assets may require a grant of representation in any ...
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Powers of attorney
- Generally
  
  Granting someone the power to act as an attorney means that the attorney can do anything that the donor can legally do on their behalf, provided they act in the donor’s best interest. It is common for a person to want or need to appoint another person to represent them, either generally or to ...
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- Capacity
  
  Challenges to a will because the testator lacked capacity are rarely successful. The authoritative case on capacity is Banks v Goodfellow (1870) LR 5 QB 549, which stated:
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- Corporations
  
  See Companies under General powers of attorney and Execution below.
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- Death
  
  Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased.
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- Delegation
  
  An attorney cannot appoint a substitute, sub-attorney or delegate unless the instrument creating the power expressly provides for an attorney to do so. A substitute attorney appointed by the donor may act during a vacancy of the specified attorney or a vacancy of a kind specified in the instrument ...
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- Directors
  
  See Companies under General powers of attorney below.
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- Disclaiming a power of attorney
  
  General powers of attorney The attorney can disclaim the authority given to them by a general power of attorney, including an irrevocable power, following which the attorney will be unable to exercise or join in the exercise of the power: s 156(1) of the Law of Property Act 1925. See ...
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- Enduring powers of attorney
  
  If an attorney disclaims their powers under an enduring power of attorney whether that revokes it entirely will depend upon whether the donor gave the attorney joint or joint and several powers to operate the enduring power of attorney. If the power is joint when one attorney disclaims this will ...
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- Execution
  
  General powers of attorney A general power of attorney must be granted by deed, s 1(1) of the Powers of Attorney Act 1971, and be validly executed as a deed by the donor of the power: s 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989.
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- Executor
  
  See Personal Representatives below.
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- General power of attorney
  
  A general, or ordinary, power of attorney is governed by the common law rules of agency and statutory guidelines within the Powers of Attorney Act 1971. A general power is used to authorise an attorney to deal with the donor's property and financial affairs, particularly in a commercial and ...
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- Insolvency
  
  See Revocation below.
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- Irrevocable power of attorney
  
  There are two main circumstances recognised by common law and statute in which an ordinary power of attorney will be incapable of revocation:
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- Joint attorneys
  
  If attorneys are appointed to act jointly then all the attorneys must sign documents or act together. If one attorney vacates office, as defined in s 5 of the Powers of Attorney Act 1971, then the power of attorney is terminated unless the document specifies otherwise and at least one attorney ...
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- Lasting powers of attorney
  
  An attorney can stop acting at any time. If the lasting power of attorney is registered the attorney must complete form LPA005 and send it to the Office of the Public Guardian. The attorney should inform any other attorneys and the donor that they are disclaiming their appointment. If the donor has ...
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- Limitations
  
  The authority given to attorneys under a lasting power of attorney is limited by the provisions of the Mental Capacity Act 2005, see Capacity above, and also any limitations specified by the donor in the lasting power of attorney itself.
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- Donor
  
  The person giving the power of attorney is known as the donor.
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- Registration
  
  Enduring powers of attorney Although lasting powers of attorney replaced enduring powers of attorney on 1 October 2007, those that were created before that date must be registered once the attorney believes the donor is, or is becoming, mentally incapable within the meaning of the Mental ...
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- Review
  
  If anyone suspects that an attorney is not performing their duties properly or is exploiting or abusing the donor, they should immediately contact the Office of the Public Guardian: Report a concern about an attorney, deputy or guardian. If anybody suspects that a criminal offence has been ...
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- Revocation
  
  See Application to revoke a grant of probate or letters of administration above.
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- Termination
  
  See Revocation above and also Termination of attorneys appointment under lasting powers of attorney above.
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- Trustees
  
  See Trustees below.
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Wills
- Generally
  
  Granting someone the power to act as an attorney means that the attorney can do anything that the donor can legally do on their behalf, provided they act in the donor’s best interest. It is common for a person to want or need to appoint another person to represent them, either generally or to ...
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- Administration
  
  Personal representatives administer an estate by collecting in the assets, paying the debts, and distributing the estate according to the will or the intestacy rules. Part III of the Administration of Estates Act 1925 sets out the principles for the administration of the assets.
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- Administrator
  
  Where there is no valid will r 22 of The Non-Contentious Probate Rules 1987 sets out who may act as the personal representative. The grant of letters of administration is the document that confers the authority to administer the estate. The personal representative is referred to as the ...
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- Alteration of a will
  
  Before the will is signed There is no requirement for the testator to initial amendments before executing the will itself, but there is a rebuttable presumption that the testator made any amendments to a will after execution.
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- Beneficiaries
  
  Claims by a beneficiary A beneficiary who believes there is a problem with the will, such as a contention that the deceased did not have capacity when the will was made, should be advised by the estate’s legal adviser to seek independent advice.
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- Burials, cremations and funerals
  
  Funeral wishes It is quite common for a will to include directions as to how the testator wishes their remains to be disposed of, or even their detailed wishes for the conduct of a funeral service.
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- Capacity
  
  Challenges to a will because the testator lacked capacity are rarely successful. The authoritative case on capacity is Banks v Goodfellow (1870) LR 5 QB 549, which stated:
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- Charities
  
  See Beneficiaries above.
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- Contracts to make wills
  
  See Mutual wills below.
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- Codicils
  
  A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil are read together to determine the terms of the will. If the testator has made a codicil or codicils they are included in the application for the grant of representation alongside the will.
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- Court made wills
  
  See Statutory wills below.
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- Disposition of estate property
  
  Disposition of land A general disposition of land in a will includes leasehold land, whether or not the testator also owns freehold land, unless a contrary intention appears in the will.
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- Divorce or annulment of marriage
  
  If the testator, having made a will while married, then divorces or has the marriage annulled, any appointment of the former spouse as an executor in the will is revoked, unless a contrary intention appears in the will: s 18 of the Wills Act 1837. Any gift to the former spouse is also revoked ...
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- Dual or multiple wills
  
  It is permissible to have more than one will. This may be where the testator has assets in two or more jurisdictions, typically in England or Wales and another country.
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- Execution
  
  General powers of attorney A general power of attorney must be granted by deed, s 1(1) of the Powers of Attorney Act 1971, and be validly executed as a deed by the donor of the power: s 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989.
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- Executor
  
  See Personal Representatives below.
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- Extrinsic evidence to construe will
  
  Section 21 of the Administration of Justice Act 1982 allows the admission of extrinsic evidence when construing a will, but only if at least one of the following applies:
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- Foreign wills
  
  See International wills below.
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- In contemplation of marriage
  
  If an individual who has made a will subsequently marries their will becomes void on marriage: s 18(1) of the Wills Act 1837. However, there is an exception to this general rule if it is clear that when making the will the testator was expecting to marry that person and intended that marriage ...
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- International wills
  
  The law that governs the validity and execution of a will where the testator’s background, estate assets or execution will have an international element is s 1 of the Wills Act 1963. The execution of the will is valid if it complies with the laws of any of the following:
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- Living wills – Advance decisions
  
  This document effectively refuses and controls treatment and end-of-life care for the donor of the power. Before the Mental Capacity Act 2005 came into force on 1 October 2007 such a document was called a living will or an advance directive.
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- Making a will
  
  A will is not valid unless it is in writing and duly witnessed. See Execution above. However, these provisions are overridden if a will is a statutory will. See Statutory wills below.
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- Minimum age of will maker
  
  Section 9 of the Wills Act 1837 provides that a testator must be at least 18 years of age for a will to be valid, unless they are a member of the armed forces on active duty. See Privileged wills below.
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- Mutual wills
  
  Mutual wills are made by two or more individuals who agree not to revoke them without the consent of the others. There is, in effect, a contract between the individuals not to revoke or alter the wills.
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- Privileged wills
  
  For a will to be privileged a member of the armed forces on active military service must complete it. Such wills do not have to meet the requirements of s 9 of the Wills Act 1837. See s 11 of the Wills Act 1837 and the Wills (Soldiers and Sailors) Act 1918.
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- Promises to make a will or a bequest
  
  Proprietary estoppel Under the doctrine of proprietary estoppel a claimant against an estate may be granted relief from the court if they can show:
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- Rectification of a will
  
  It is possible to apply for rectification of a will that fails to carry out the testator's intentions because of a clerical error or a failure to understand the testator's instructions. An application for rectification must be made within six months from the date of the grant of representation in ...
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- Revocation
  
  See Application to revoke a grant of probate or letters of administration above.
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- Solicitors
  
  As executor It is relatively common for solicitors to be appointed as executors or alternate executors in their client’s wills.
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- Statutory wills
  
  Under s 18(1)(i) of the Mental Capacity Act 2005 (the Act) the Court of Protection has the legal authority to make a statutory will for a person who does not have the relevant mental capacity within the meaning of s 2(1) of the Act to make a will for themselves. The statutory will that ...
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- Survivorship
  
  Assets Assets in joint ownership can either be held as joint tenants or as tenants in common.
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- Testamentary capacity
  
  See Capacity above.
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- Testator
  
  The term testator is a definition used in common law and statute to describe the person making a will and is the preferred term in the literature and the cases on wills and probate. Not surprisingly, the term testatrix, being the female version of testator, does not appear in statute.
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- Who can inspect the will of a deceased person?
  
  Only the executors are entitled to see the will of the testator. If probate is required to administer the estate, then once the will has been proved and a grant of representation issued by the probate registry the original will becomes a public record document.
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- Witnesses
  
  The testator must sign the will in the presence of at least 2 witnesses at the same time: s 9(c) of the Wills Act 1837. Case law indicates that visual presence is essential. The testator and the witnesses must be able to see each other.
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Estate Administration

This publication guides practitioners acting for executors and administrators in estate law matters.

Overview

Precedents in this publication include:

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