probate

Avoiding probate problems

  • Author : Keith Biggs
  • Date : May 2009
ABOUT THE AUTHOR: Keith Biggs is a retired probate registrar who acts as a consultant on problem probate applications

T he work of the probate registries continues to increase. Recent cutbacks in staff numbers and training make it more difficult for the registries to process grant applications with the speed and efficiency than was formerly the norm.

It is always helpful to the registry if the papers lodged to lead the grant are complete and accurate. It also means the grant will be issued with the minimum of delay.

Errors in applications for grants

It surprised me and my brother registrars (we then had no sisters) that the last survey of solicitor applications for grants, conducted by the registries in March 2004, showed a 35 per cent error rate in the paperwork submitted. It was even more surprising to discover that despite the elapse of ten years since the previous survey, conducted by the National Audit Office in 1994, the error rate had increased by 5 per cent! I am told by former colleagues in the registries the situation now is worse.I set out below a few points to check before sending the grant application to the registry. Hopefully the little extra care will ease the burden for the registry and gain you some brownie points with the staff.

1. The Oath form
Extracting solicitors/probate practitioners

The full name and address, including the postcode and DX number of the extracting solicitors/probate practitioner, should appear in the top right corner. It is most important to include your postcode, as each registry uses it to identify your firm in the registries’ national computer system. If your office reference is required to be shown in the grant, add the reference here.

Name of deceased

Check the name of the deceased corresponds with the name in his will (if any) and the name appearing in the death certificate.

Where the deceased was known by another name and the alternate name is required to appear in the grant, the reason for including the alias (usually that there are assets held in the other name) must be included in the oath, if necessary in a separate paragraph at the end. If the oath was sworn before the alias name was known then give details in your covering letter with the application. The registry will only include an alternate name under N-CPR1987 rule 9 if good reason is given.

Name(s) of the executor(s)/administrators

Check the name(s) correspond with that in the will. Any difference must be explained in the oath (or by filing a separate affidavit of identity) e.g. Jack Straw commonly known as and referred to in the will as Jack Boot.

It is best to check the names of all executors/administrators before drafting the oath so their names can be correctly stated.

Clearing executors

Where not all the executors are applying, ensure the oath clears those not proving by reciting that they predeceased the deceased, have renounced, or are having power reserved. Ensure the oath states (where appropriate) that notice has been given to the executor(s) having power reserved or that the giving of notice has been dispensed with by direction of the registrar.

Survival clause in will

Where the will contains an appointment of executors with a survival clause ensure the survival period has elapsed before the oath is sworn. If it has not elapsed confirm in your covering letter when lodging the papers that the survival period has now elapsed and the applicant is still alive.

This also applies to residuary beneficiaries applying for letters of administration (with will annexed) and there is a survival period before which the beneficiaries do not acquire their gift.

Date of death

Obtain from your client a copy death certificate to ensure your deceased has died. Things can get a bit complicated if your ‘deceased’ has not in fact died. Check the date of death in the oath coincides with the date of death on the death certificate. The oath must also contain the deceased’s date of birth and age at death.

Domicile

Ensure the deceased’s domicile is inserted; rule 8 requires it. Where the domicile is foreign (anywhere outside England and Wales) and where different systems of law operate in different parts of that country, ensure the State/Territory of domicile is inserted, e.g. ‘in the State of Texas United States of America’.

Failure to include the domicile will always require the oath to be re-sworn.

Codicil

If there is a codicil or codicil(s) ensure they are referred to in the oath

Settled land

Ensure the clause relating to settled land has been completed. Everybody knows there is no settled land but rule 8 requires the statement to be included.

Life or minority interest

Where application is made for a grant of administration with or without will, check that the clause relating to any life or minority interests has been completed. Unless dispensed with by the court, a second administrator will be required if either such interest arises.

Intestacy cases

In intestacy cases ensure the proper clearing of all kin with prior entitlement is recited; the relationship of the applicant to the deceased and whether the applicant is one of or the only person entitled to the estate. Where the applicant has lower title than issue, remember to add ‘or any other person entitled to share in the estate by virtue of any enactment’

Attorney applications

Ensure the fact that the attorney of the person entitled is recited: ‘I am the lawful attorney of … (person entitled)’; and that the limitation ‘for the use and benefit of … (person entitled) and until further representation is granted’ is included after the words ‘I will collect get in and administer the real and personal estate of the said deceased’. Remember to send the power of attorney and a copy for retention by the registry. If the applicant is applying under an EPA or LPA remember to lodge any medical evidence required. In LPA cases, recite (as appropriate) whether the donor lacks or does not lack capacity within the meaning of the Mental Capacity Act 2005.

Estate values

Ensure the correct values for the gross and net estate are inserted. Where the estate is ‘excepted’, insert the paragraph stating that no account is required to be delivered.

Jurat

Ensure the jurat is completed, including the date of swearing, and has been signed by all the deponent(s) and the commissioner(s).

2. The will

Check the will (and any codicils) is properly dated and the attestation clause was properly completed. If there is a defect and unless the provision of Rule 12(3) applies, evidence on affidavit by a witness confirming due execution will be required. If the will has been damaged, evidence to account for the damage will be required. Check the will is the will of the deceased (and not that of his wife/husband, brother/sister or executor – all examples of wills received on grant applications) and is the last will made.

As from 1 January this year, practitioners are required to lodge with the registry on application for the grant two copies of the sworn will (i.e. the original will marked when the oath was sworn). These copies must:

  • be on A4 paper and not stapled or otherwise fastened;
  • be of good quality and complete but covers or instructions should not be included;
  • be clear and legible – any will with faint type or writing may need colour enhancing on copying;
  • have the top and left hand margins left clear to enable the grant to be attached;
  • if, to facilitate copying, the original will needs to be taken apart, the original must be restored to the same plight and condition as when executed and a certificate confirming this to be the case and that nothing of a testamentary nature was attached or detached included in a covering letter.
3. The inheritance tax account

Where an account is required check the form of account and send it with Form IHT421 to HMRC Inheritance Tax. If the estate attracts IHT, ensure Form IHT421 is stamped that the tax has been paid.

The Registry will require either;

  • Form IHT421;
  • Form IHT205 (domicile in England and Wales); or
  • Form IHT 207(foreign domicile)
  • on every application for an original grant or application for resealing, and
  • Form IHT421;
  • Form IHT205 (domicile in England and Wales);
  • Form IHT 207(foreign domicile); or
  • CAP Form A5C

on every application for a second or subsequent grant to the same estate.

4. Other documents

Remember to send any other document required, e.g.

  • affidavit of due execution;
  • affidavit of plight and condition;
  • consent;
  • court order;
  • medical evidence of lack of capacity;
  • parental responsibility agreement;
  • power of attorney;
  • renunciation;
  • resolution/nomination.
5. Fee

Another surprising statistic produced by the surveys is that 3 per cent of grant fees received are for the wrong amount, or the cheque is made payable to the wrong payee. This is somewhat strange considering there is no fee on estates below GBP5,000, a flat fee of (now) GBP40 for estates over GBP5,000 and a flat fee of GBP1 for any copy grant or will, plain or certified. Cheques should be made payable to ‘HMCS’. The deceased’s name should be written on the back of the cheque.

Do not send your client’s cheque. They are often for the wrong amount, wrong payee or ‘bounce’. This, apart from the extra work involved for the registry, obviously delays the issue of the grant.

Failure to comply with checks

Persistent failure to comply with the above checks will undoubtedly get your name in the registry’s ‘little black book’ of practitioners who cause difficulties. These practitioners are never helped or given guidance by the registry staff so that hopefully they will eventually take their grant applications elsewhere (the only help likely to be given being the address of another registry).


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