Willow

How do I get a grant of probate?

A grant of representation is the collective name for either a grant of probate, if there is a valid will, or a grant of administration if there is not.

If there is a valid will: executors are the legal owners of the deceased's estate under the will from the moment of death, but they will still usually need a grant of probate as evidence.

Without a valid will: ownership of an intestate deceased's assets does not pass to administrators until the grant of administration has been made.

The application process

A grant of representation can be made in two ways: (1) by the person entitled to the grant, or (2) by a probate practitioner.

Applications for a grant of probate are made using form PA1P, and letters of administration are done via PA1A. Note that letters of administration with will annexed use PA1P.

While there are no time limits for making a grant of representation, the probate registry will generally not grant probate (or letters of administration with will annexed) within 7 days after death, or a grant of representation within 14 days after death.

Most grants of probate are made 'common form', which indicates that there is no dispute associated with the will. If there is a dispute about the will, then this is dealt with by the Chancery Division of the High Court.

Documents required

  • Tax - to obtain the grant, you must prove that any tax on the estate has been paid. This is done by supplying a code from HMRC. If the estate is an excepted estate, no tax (and therefore no code) is required.
  • Statement of truth - signed by all executors / administrators of the estate, confirming:
    • the deceased has died, the date of death and their domicile;
    • whether the deceased died testate or intestate;
    • on what grounds the Personal Representatives are entitled to the grant; and
    • how much the estate is worth (gross and net).
  • Will - for a grant of probate, the full, original will must be submitted. The registry may accept a copy if there is sworn evidence the original was destroyed. For a grant of administration, the proposed administrator will have to show their evidence of 'clearing off' (i.e. that they are the appropriate person to deal with the grant).

For more complex matters, affidavit evidence may be required. This is a written statement sworn on oath and/or a witness statement. Lying in an affidavit carries the penalty of perjury. It may be required in the following scenarios:

Due execution - if a will doesn't contain an attestation clause, or if elements raise alarm (e.g. the signature isn't at the end), then the registry may request an affidavit or witness statement.

Date - a will doesn't need to be dated, but most are. The registry will need to be satisfied this is indeed the last will and may require an affidavit or witness statement. In general, if there is more than one date, the registry will take the latest, provided it is at the end of the will.

Knowledge and approval - if a will is duly executed, then the registry presume knowledge and approval. However, in certain cases (e.g. the testator is blind or illiterate) the registry may request an affidavit or witness statement.

Plight and condition - if the will has been physically damaged, including evidence of staple, pin or tape marks, or the impression of a missing paperclip, then the registry will need full affidavit evidence to explain the condition and any searches conducted for missing pages.

Limited grants

Generally a grant will cover all the deceased's assets in the estate without limitation. However, there are three well-defined scenarios (esp. in administration) where the grant may be more limited:

  1. de bonis non - this is where there are difficulties with the proposed PR and no other PRs are available. This generally means the PRs have died, lost mental capacity or simply disappeared before the administration was complete (and sometimes before it even began);
  2. ad colligenda bona - can assist in the period between death and the full grant of administration, when the administrators are not empowered to deal with the assets because they do not have title (unlike a will, which confers powers immediately on death). Sometimes this can cause problems, because it can be a valuable asset that needs to be managed or will be lost (e.g. a farmer who dies leaving his crop);
  3. grant pendente lite - when some or all of the parties are fighting about the will in court. For example, a caveat has been entered and the court is deciding the case. The estate will usually still need to be managed, and this grant allows someone to take the role of PR while the litigation is ongoing.