Probate and Administration



4503420-133352010Vlad AverinAnglia Ruskin9/18/2010400001000002010Vlad AverinAnglia Ruskin9/18/20101714502846705Wills & Administration900007300Wills & Administration440118572980550044011855546090004425315359854500Contents TOC \o "1-3" \h \z \u Probate and Administration PAGEREF _Toc273823231 \h 3The client PAGEREF _Toc273823232 \h 3Probate –with will – (Up to 6 weeks) PAGEREF _Toc273823233 \h 3Administration with Will PAGEREF _Toc273823234 \h 3Intestate PAGEREF _Toc273823235 \h 3Steps to obtain a grant PAGEREF _Toc273823236 \h 3Grant not required PAGEREF _Toc273823237 \h 4Steps after instruction PAGEREF _Toc273823238 \h 4The will PAGEREF _Toc273823239 \h 5Is the Will valid PAGEREF _Toc273823240 \h 5Rectification (changes to the will) PAGEREF _Toc273823241 \h 5Intestacy PAGEREF _Toc273823242 \h 6Types PAGEREF _Toc273823243 \h 6Entitlement of Spouse\Partner with surviving issue PAGEREF _Toc273823244 \h 6If no spouse PAGEREF _Toc273823245 \h 6Gifts and Failures of Gifts PAGEREF _Toc273823246 \h 7Types of gift PAGEREF _Toc273823247 \h 7Failures PAGEREF _Toc273823248 \h 7Ademption – The Gift fails if the gift no longer forms part of the estate. PAGEREF _Toc273823249 \h 7Lapse – If the beneficiary predeceases the testator the gift will lapse and fall into residue. If the residue lapses this is partially intestacy. PAGEREF _Toc273823250 \h 7Disclaimer – When they don’t want the gift cannot disclaim if you have already had benefit. PAGEREF _Toc273823251 \h 8Variation – The PR’s can change the provision requires a Deed of variation. PAGEREF _Toc273823252 \h 8Family Provision – the inheritance (Provision for Family and Dependants) Act 1975 PAGEREF _Toc273823253 \h 9Applicants s1(1) PAGEREF _Toc273823254 \h 9Grounds for a claim PAGEREF _Toc273823255 \h 9Common guidelines for a claim PAGEREF _Toc273823256 \h 9Particular guidelines PAGEREF _Toc273823257 \h 9A child of the deceased PAGEREF _Toc273823258 \h 9A child of the family PAGEREF _Toc273823259 \h 10A person maintained by the deceased PAGEREF _Toc273823260 \h 10A cohabitant PAGEREF _Toc273823261 \h 10Orders s2(1) PAGEREF _Toc273823262 \h 10How to exclude someone from the will PAGEREF _Toc273823263 \h 10Acts PAGEREF _Toc273823264 \h 11WillsProbate and AdministrationThe client – normally the deceased personal representative (PR)Will statusWho will administer the WillWhat’s required from the Probate registerWill LeftValid appointment of executorsGrant of ProbateWill LeftNo persons will or able to act as executorsr.20 Non-Contentious Probate Rules 1987 Grant Letters of Administration with Will annexed obtainedNo WillAdministrators (simple administration) appointedNote possible conflict of interests Rule 3 solicitors code of conductr.22 Non-Contentious Probate Rules 1987 Grant Letters of Administration (simple administration) madeProbate –with will – (Up to 6 weeks)Grant of probate is an official document which the executors may need to administer the estate. It is issued by a section of the court known as the probate registry. Probate Application Form - PA1To obtain a copy of Probate (search) and a Will use – PA1STo give up rights and nominate an attorney) PA1 section C that person is sent a formTo renounce, you fill in a form, called a form of renunciation. You can buy this form from specialist legal stationers.For some one that refuses to apply a beneficiary or next of kin needs to go through the court of a citation.For the removal of an executor it needs to be done through the courts.Administration with WillAdministrators are appointed in accordance with r.20 Non-Contentious Probate Rules 1987. PA1You are named in the WillIntestateYou are their next of kin – In the order belowSpouse – civil partnerSon\DaughterParentsBrother\SisterGrand ParentsUncles\AuntsChildren of sons, daughters, brothers, sisters, uncles, aunts.Steps to obtain a grantObtain the application formsChoose where you wish to be interviewedComplete the application formsReturn them, with the death certificate and the original will and CodicilAttend an interviewGrant not requiredA grant may not be needed if:The value of asset does not exceed ?5000 – Administration of Estate (Small Payments) Act 1965 some banks may insist the grant is made before they release the funds.Joint tenancy and is passing by survivorship to the other joint owner(s). This can be the case for married couples and those in a legal civil partnership.Joint bank\building society account In this case, the bank may only need to see the death certificate, in order to arrange for the money to be transferred to the other joint owner. However, a grant could still be needed to access assets held in other bank accounts or insurance policies.The amount held in each account was very small. You will need to check with the organisations (banks, building societies or insurance companies) involved to find out if they will release the assets without a grant.Life policies held in trust.Steps after instructionObtain Will and copies of the death certificate. Copies must be certified by the registrar.Assist in funeral arrangementsCalculate the estate and secure any property (left empty).Temporary loan to dependentsObtain full details of beneficiaries calculate their entitlement. Find missing or unknown creditors (people they owe money to) and beneficiaries. The willIs the Will valid Is the testator over 18Made voluntarily and without pressure from any other person; andMade by a person who is of sound mind (Banks v Goodfellow test)In writing; andSigned by the person making the will in the presence of two witnesses; and in writing; and A witness or the married partner of a witness cannot benefit from a Will, the will is still valid but the beneficiary will not be able to inherit under the will.Although it will be legally valid even if it is not dated, it is advisable to ensure that the will also include the date on which it is signed.The will must be clear (plain ordinary meaning) – Jones v Midland Bank [1998] 1FLR 246Has the testator married\civil partnership after the will been written? If so the will maybe invalid unless codicil is attached or the will was made they were expecting to marry and intended not to revoke the will. Rectification (changes to the will)Allowed by s.20 Administration of Justice Act 1982 Allows changes forClerical errorFailure to understand the testator’s instructionsPossible negligence against a solicitor Walker v Medlicott [1999] 1 AII ER 685 and Horsfall & Powell v Haywards [1999] 1FLRExtrinsic evidence – This means external evidence that may affect the way the will is read.IntestacyAdministration of estates Act 1925 (as amended) (AEA) and Civil Partnership Act 2004.TypesTotal – Deceased dies with no valid willPartial intestacy – Deceased with will disposing of some not all of the property.S 33(1) AEA – on the death of a person instate all property will be held on trust by his PR’s upon trust to sell.Once all debts and expenses are met the balance left behind after pecuniary legacies (gifts of money to individuals) is called the residuary estate.S46 AEA Sets the order of beneficiary. Only direct blood relationships will benefit. However the Crown can make provisions for dependants of the intestate whether they are blood or not. S 46(1) (vi) AEAEntitlement of Spouse\Partner with surviving issuepersonal chattels absolutestatutory legacy of ?250,000 plus interest 6%life interest in half the residueThe other half of the residue goes on trust to the issue.S 47A AEA – spouse can convert the life interest to a capital sum must be done in 12 months.Entitlement of Spouse\Partner no issuespersonal chattels absolutestatutory legacy of ?450,000one half the residue absoluteThe other half of the residue goes to the parents in equal share, or if none , to brothers\sisters or there issues on trust.If the estate does not exceed ?200,000 spouse\partner takes all.Entitlement of Spouse\Partner no issues, parents, brothers\sistersWhole estate to spouse\partnerIf no spouseSon\DaughterParentsBrother\Sister whole bloodBrother\Sister 1/2 bloodGrand ParentsUncles\Aunts whole bloodUncles\Aunts ? bloodBona vacantia (To the crown)Gifts and Failures of GiftsThe PR’s are responsible for distributing the estate. You must advise PRs not to distribute until 6 months after the date of the grant.They must:Identify the beneficiariesNature and extent of entitlementWhat is the propertyS 24 Wills Act 1837 - The will is interpreted in respect of the testator's property immediately before his death (s.24) basically means you can’t give what you have not got any more.Types of giftGifts are divided into 2 types, legacies and devises. A legacy is a gift of personality. A devise is a gift of real property.Specific legacies - A particular item distinguished from the rest of the estate ("my piano"; "my diamond ring") the beneficiary bears cost of transferring assets in the absence of provision to the contrary. General legacies – Not distinguished, but to be provided for out of the general estate ("I give 1000 shares in Manchester United pic) Demonstrative legacies – A gift which is general in nature but a particular fund is pointed out to satisfy it. (''?1,000 from my account with Barclays' bank)Pecuniary legacies – A gift of money ("I give ?5,000 to X) Defined by s.55(1)(ix) AEA 1925Not required to pay debtsShould come out of the residueTime for payment made within a year interest after at 4%Residue legacy – Gift of what’s left.FailuresAdemption – The Gift fails if the gift no longer forms part of the estate.Lapse – If the beneficiary predeceases the testator the gift will lapse and fall into residue. If the residue lapses this is partially intestacy.s.184 Law of Property Act 1925 – When 2 people die at the same time the youngest is said to die last.Survivorship clause in a willSubstitution gift – if they die before me pass it to the other person (prevents lapse)s.33 Wills Act 1837 (as substituted by Administration of Justice Act 1982) - if a will contains a gift to the testator's child or remoter descendant who dies before the testator leaving issue living at the testator's death, the gift takes effect as a gift to the issue. s.33(2) contains a similar provision relating to class gifts s.33 can be excluded by contrary intention This means if the testator writes in the will he does not want them to get something.Failure of contingency – s.18A Wills Act 1837 (as substituted by the Law Reform (Succession) Act 1995. Anything a testator leaves the former partner shall be treated as if there partner had died on the date the marriage ended. Example Simon Fiona marry Fiona makes will that leaves everything to him unless he dies before her. If this happens it goes to the children. They divorces and she dies.Uncertainty – Of what is being givenBeneficiary or spouse/civil partner witness the will. S.15 Wills Act – Ross v Caunters [1979] 3 AII ER 580Disclaimer – When they don’t want the gift cannot disclaim if you have already had benefit. Variation – The PR’s can change the provision requires a Deed of variation.Family Provision – the inheritance (Provision for Family and Dependants) Act 1975The act gives the court limited power to order provision from an estate to certain categories of applicant. These have been extended Civil Partnership Act 2004.Applications must not be made within 6 months of the date of the grant. This could be extended.Applicants s1(1)SpouseFormer Spouse (not remarried) – RE Fullard [1981] 2 AII ER 796A chid, non-maternal, legitimated, adopted, unborn Re Coventry [1980] Ch.461 RE Goodchild [1996] 1 FLR 591Any person not a child of the deceased, treated by the deceased as a child of the family in connection with a marriage/civil partnership of which the deceased was a party. (Step child)Any person immediately before the death was maintained wholly or partly meaning of maintained s.1(3) Re Beaumont [1980] 1aII ER 266 – Jelley v llliffe [1982] 2 AII ER 29A cohabitantGrounds for a claimS1(1) That the deceased or the rules of intestacy or a combination of the two have failed to make reasonable financial provision for the applicant.Reasonable s.1(2((a) and (2)(b)Common guidelines for a claimthe financial resources and financial needs which the applicant , any other applicant and any beneficiaryany obligations and responsibilities the deceased had towards the applicant or beneficiarysize and nature of the estateany physical or mental disability of the applicant or beneficiaryany other relevant matter, including the conduct of the applicantParticular guidelines the age of the applicant and the duration of the marriagethe contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the familyprovision the applicant may have received on divorce/dissolutionWhite v White [2000] 2 FLR 981 50/50 split of assetsA child of the deceasedThe manner in which the applicant was being or might expect to be educated or trainedNote case law relating to applications by adult children of the deceased:Re Coventry (above)Re Hancock [1998J 2 FLR 3465tephanides v Cohen [2002] 22.5.2002 LSGA child of the familyAs in 7.3 above, plus:(a) the extent of responsibility assumed by the deceased(b) whether the deceased knew the child was not his own(c) the liability of any other person to maintain the applicantA person maintained by the deceasedThe extent and length of time of responsibility. whether the deceased knew the child was not his ownthe liability of any other person to maintain the applicantA cohabitant(a) the age and length of the period lived there as deceased's husband or wife / civil partner and in the same household(b) the contribution made by the applicant to the welfare of the family includinglooking after the home or caring for the family.Orders s2(1)Burden of the order can be thrown on any part of the estateOrder is made against the net estate of the deceased.How to exclude someone from the willYou need a specific exclusion clause in your Will and, by writing a short letter in your own hand writing giving your explanation of the exclusion, to be stored with your Will. If you do not want to amend the Will this can be done using a codicil. All need to be completed in accordance with s.9 Wills Act 1837.ActsFamily Provision – the inheritance (Provision for Family and Dependants) Act 1975 – Making a claimWills Act 1837 (as amended by) Administration of Justice Act 1982 - Writing and meaning of the willAdministration of estates Act 1925 (as amended) (AEA) and Civil Partnership Act 2004 – IntestacyNon-Contentious Probate Rules 1987 – Grant of Probate and Administrations.184 Law of Property Act 1925 – Who dies first ................
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