Different types of Grants
Limited Grants
A Grant of Representation may be required urgently for various reasons, but there are reasons preventing the Personal Representatives making an application for the full Grant of Representation. In order to deal with this issue, the Probate Registry has the discretion to issue a limited Grant of Representation on the terms they see fit.
A common example where the Probate Registry would allow a limited grant is in a situation where a person has exchanged contracts to sell their property but passes away before completion has taken place. In this scenario, the Probate Registry is almost certainly likely to issue a Grant of Representation to the Personal Representatives, limited to authoring them to complete the sale of that specific property.
The individual(s) applying for the limited Grant must persuade the Probate Registry why the limited Grant is vital for the estate and provide all relevant documentation.
Grant Pendente Lite
A Grant Pendente Lite is also referred to as a Grant pending suit. In a situation where a person’s estate becomes contested and delays are experienced, it may be necessary to preserve the estate’s assets, which cannot be achieved without a Grant of Representation.
The Probate Registry therefore has the authority to issue a grant, pending the resolution or conclusion of a claim.
The Probate Registry usually issue these types of limited grants to individuals independent of the claim, in order to avoid a conflict of interest.
This form of grant is limited and will only be valid until the claim concludes/settles. The Personal Representative with limited power will only be able to preserve the assets of the estate, they will not be able to make distributions without seeking the permission of the Court first.
In order to finalise the estate, a further Grant of Representation setting out the full account of the estate’s assets and liabilities will be required.
Grant Ad Colligenda Bona
It may not be possible to apply for a Grant of Representation within a reasonable timeframe after a death. This may be due to various factors, for instance:
- The full extent and value of a person’s estate cannot be ascertained easily;
- It is unclear, or there is doubt, as to who the Personal Representatives are and who should apply;
- The Personal Representatives are unable to apply and there is a delay in a replacement being found.
Whilst these matters are ongoing, there may be a need to urgently obtain a Grant of Representation in order to preserve the value of the estate. For example, a mortgage lender may be threatening repossession and a property in an estate can only be sold with a Grant of Representation.
In these circumstances, the Probate Registry can issue a Grant of Representation, known as a Grant Ad Colligenda Bona, limited to collecting in and preserving the assets. The Probate Registry can issue this to anyone who applies and they deem suitable.
The Personal Representative appointed under a Grant Ad Colligenda Bona cannot distribute the estate without first providing the Probate Registry with a full account of the estate’s assets and liabilities.
In order to make an application for a Grant Ad Colligenda Bona, the person applying should set out their reasons for making the application on a Witness Statement, which usually describe how there will be a detriment to the estate without an urgent Grant being issued.
Cessate Grant
There may be a situation in which a Personal Representative is prevented from applying for a Grant of Representation. For instance, if an individual appoints a minor as their sole Executor in their Will, that child will be unable to apply for a Grant of Probate, until they reach 18 years of age.
To temporarily resolve this issue, the child’s parent or guardian can apply for the grant on their behalf. This grant is limited until the child becomes of age, after which it expires. This type of application is governed by Rule 32 of the Non-Contentious Probate Rules.
At 18 years old, the child can apply for a Cessate Grant. This is a second grant issued by the Probate Registry to allow the applying individual authority to administer the remainder of the estate.
As some of the estate may already have been administered, only the assets which remain unadministered are included in the application for a Cessate Grant.
If none of the estate has been administered, then the Cessate Grant can cover the assets in the entire estate.
Grant Caeterorum
An individual’s Will can appoint separate Executors to deal with different aspects of their estate. This is common with people who have had careers in the arts, for example, authors, who appoint separate Executors in their Wills to deal with their Literary Estates only.
These Executors must apply for a Grant of Representation limited to administering the Literary Estate.
If the Executors limited to administering the Literary Estate take out the Grant of Representation, they of course do not have the authority to finalise the administration of the entire estate.
Therefore, Executors appointed to administer the main estate must apply for an additional grant known as a Grant Caeterorum. In other words, if the first grant issued by the Probate Registry does not allow for the entire estate to be administered, then an additional grant must be applied for – a Grant Caeterorum.
Grant of Double Probate
There may be circumstances where an Executor appointed under a Will cannot, or does not want, to apply for the Grant of Probate alongside the other Executors. This may occur due to ill-health, or perhaps an Executor is confident that the remaining Executors can administer the estate successfully without them.
Usually, the applying Executors reserve power to the non-applying Executors, otherwise known as having power reserved.
This will allow the non-applying Executor to apply for probate in the future, should they wish. Should they decide to take up this opportunity, they will be making an application for Grant of Double Probate.
A Grant of Double Probate does not cancel or revoke the original Grant of Probate, but instead, they both run concurrently together. It also has the exact same power and authority as the original Grant of Probate.
A Grant of Double Probate may also be suitable where a Will appoints Executors, one of whom is under 18 years old. Once that Executor reaches 18, they can also make an application for a Grant of Double Probate.
Grants for the use of persons mentally incapable of managing their affairs
Rule 35 of the Non-Contentious Probate Rules covers the situation in which a person is entitled to take out a Grant of Representation but is incapable of doing so by reason of mental incapacity. In this scenario, the Probate Registry can issue the grant in favour of one of the following individuals in the order of priority:
- A person authorised by the Court of Protection;
- An attorney appointed by the incapacitated individual under a registered enduring power of attorney; or
- A beneficiary of the deceased’s residuary estate.
If there is another individual able to apply for the Grant of Representation, such as a co-Executor named in the Will, then the Probate Registry will not issue a Grant to one of the individuals named above, but instead, they will favour the co-Executor.
However, there may be a situation where no other person is entitled to apply for a Grant. For example, where a person has only named one Executor in their Will, who is mentally incapacitated, or the other appointed Executors simply do not wish to act.
If an attorney appointed under a Lasting Power of Attorney for property and financial affairs wishes to apply on behalf of an incapacitated individual, the attorney must provide the Probate Registry with written medical evidence of the mental incapacity. This is submitted on form PA14 (Medical Certificate (Probate). This differs from a person applying using a registered enduring power of attorney, which can only ever be registered when a person has lost capacity. A Lasting Power of Attorney for property and financial affairs can be used while the person still has mental capacity, and so the Probate Registry require this additional medical evidence of incapacity.
Settled Land Grant
The government’s Inheritance Tax Manual defines settled land as “property held in trust for successive beneficiaries or for any person subject to a contingency such as the future birth of a further beneficiary.”.
Simply put, land is held in a special type of trust (known as a strict settlement), to ensure it remains within the same family for the benefit of future generations.
Following the introduction of the Trusts of Land and Appointment of Trustees Act 1996, new strict settlements can no longer be created.
Therefore, a Settled Land Grant can only be applied for where a deceased person’s estate includes settled land, contained within a strict settlement, that was created prior to 1st January 1997.
If these conditions do apply, the Personal Representatives of the estate will need to apply for a separate Grant of Representation to administer the settled land separately to the individuals’ remaining estate, also known as the ‘free estate’.
On 16 October 2024, Anthony Gold will be hosting a seminar on the subject of ‘Navigating unusual and complex estate grants’ during which types of grants will be discussed in more detail. For further information or to sign up click on the banner below:
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