When someone dies, a grant of representation (probate or letters of administration) is often required in order to administer their estate, whether this be in order to close their bank accounts, sell their property or encash their shareholdings. If an individual dies testate (i.e., leaving a will), their will will name one or more executors, who, should they be willing to act, will take on the responsibility of administering the estate. Depending on the size and value of the estate, this can be an onerous task and consideration should be given as to who is best suited to the role.
If a person dies intestate (leaving no will), section 22 Non-Contentious Probate Rules 1987 sets out who has priority to apply for a grant of letters of administration and deal with the estate. Broadly, the order of priority is:
- a surviving spouse/civil partner;
- children of the deceased (or issue – being children or grandchildren – of a child who died before the deceased);
- father and mother of the deceased;
- brothers and sisters of the deceased (or issue of any sibling who died before the deceased);
- half-brothers and half-sisters of the deceased (or issue of any half sibling who died before the deceased);
- grandparents; and
- uncles and aunts (or issue of an uncle or aunt who died before the deceased).
Any person applying to act as personal representative of an intestate estate will need to ‘clear off’ those of higher priority, meaning that they will need to set out the reasons that those with higher priority are not applying, for example, due to incapacity or having died before the relative who has died.
Chains of representation: what are they and how do they work?
Where the deceased dies testate, an executor will obtain a grant of probate to administer the estate. The estate will then be their responsibility and they will have a duty to act in the best interests of the estate and to maximise its value. Some estates can take a long time to be administered (due to their size, complexity or unforeseen delays). So, what happens if an executor dies before they have finalised the estate?
In this case, provided that the executor themselves has left a will, their named executor can continue to administer the first-deceased’s estate as provided for by section 7 Administration of Estates Act 1925 (“AEA 1925”). This is known as the “chain of representation” and is more easily demonstrated by way of an example:
Allen dies testate. In his will, he names Betty as his executor. Betty obtains a grant of probate in Allen’s estate but dies before the estate is finalised. Betty’s will names Frank as executor. As Betty obtained a grant of probate in Allen’s estate before she died, this means that Frank can act in finalising Allen’s estate as well as administering Betty’s.
Provided Frank obtained a grant of probate bearing his name as executor in Betty’s estate, he need not obtain a grant bearing his name in Allen’s estate too. Instead, the grant of probate bearing Betty’s name would suffice and enable him to continue to administer Allen’s estate. This is a simplistic example of how the chain of representation works in practice.
Should Frank then pass away, naming an executor in his will, that executor could act in Frank’s estate, Betty’s estate and Allen’s estate. Theoretically, the chain of representation could go on and on, provided that each executor who dies has themselves left a will appointing an executor.
When is the chain of representation broken?
Section 7(3) AEA 1925 provides for the instances in which the chain of representation will be broken.
The chain of representation will not apply (or had it previously applied, will be broken), when a person dies intestate. For example, using the above scenario, if Betty were to die intestate having failed to finalise Allen’s estate, the intestacy rules would apply, and the order of priority would determine who was entitled to administer each of Allen and Betty’s estates. This will also be the case should the executor have left a will which failed to name an executor.
Another consideration to bear in mind is that the chain of representation will not be applicable where more than one executor is appointed, and they survive the deceased executor. In this case, the surviving executor(s) can continue to administer the estate in line with the terms of the will. This is the case even where the surviving executor had chosen to act “with power reserved”, meaning they had not been named on the grant of probate. The surviving executor with power reserved may choose to revive their right to probate following the death of the acting executor, in which case, the chain of representation will not apply.
It is also important to note that the chain of representation will not apply where an executor in the chain has failed to obtain a grant of probate. For example, had Betty failed to obtain a grant in Allen’s estate before she died, Frank would not be entitled to administer Allen’s estate and could only apply for a grant of probate in Betty’s estate.
Grant de bonis non administratis
A ‘grant de bonis non’ (which translates literally to a grant ‘of goods not administered’) will be required where the personal representative or executor of an estate dies without having completed the administration of the estate and without having left a will themselves, i.e. where the chain of representation does not apply.
The order of priority set out in the Non-Contentious Probate Rules will apply in relation to who is entitled to apply for a grant de bonis non and therefore those of higher priority will need to be ‘cleared off’ by any applicant who is further down the line. The applicant, once granted probate, will be known as the ‘administrator’ of the estate. By way of an example:
John dies appointing Lois as executor of his estate. Lois begins to administer John’s estate but dies before the administration is complete. Lois does not have a will and therefore the chain of representation does not apply. In this case, John’s sister, Pam, applies for a grant de bonis non and is appointed as administrator (having cleared off John’s wife, children and parents, all of whom died before John).
The process of applying for a grant de bonis non is similar to that of a normal grant application, though there are some additional legal requirements that must be met by the applicant.
Another reason for applying for a grant de bonis non would be where the remaining executor of an estate loses capacity before administration is complete and is therefore unable to act.
Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.
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