Rachael Kell of Wright Hassall explains everything you need to know about a grant of representation, including the various types and when you'll need one.

What is a grant of representation?

A ‘grant of representation’ is the generic term for the legal order issued by the probate court in the estate of a deceased person in England and Wales. In Scotland a grant equivalent is called a ‘confirmation’.

The grant gives legal authority to prove that the executor or administrator (the personal representative) can administer the estate, undertaking tasks such as signing sale contracts or transferring documents for property, closing bank accounts and selling shares.

What types of grant of representation are there?

The two most common types of grant of representation are a ‘grant of probate’ and a ‘grant of letters of administration’:

• A grant of probate is issued when a person has left a will naming an executor (executrix if female) who proves the will through the probate court.
• A grant of letters of administration is issued when a person has not left a will and the person entitled under the rules of intestacy seeks authority to administer the estate.

However, there are other various grants of representation, each of which is used in specific situations. Some other types of grant of representation include:

• A grant of letters of administration with will annexed is when a will is being proved but not by the executor named or if no executor has been named. For example, the grant could be taken out by a named beneficiary.
• A grant ad colligenda bona is a limited grant obtained to deal with a particular asset if the full estate cannot be ascertained but urgent action is required. For example, a property sale but the estate cannot be distributed.
• A grant of administration de bonis non is a grant obtained when there has been a previous grant issued but the last surviving personal representative has died without completing the administration of the estate, leaving no chain of representation.
• A grant pendant lite (pending suit) is a grant issued where the estate is subject to legal proceedings/a claim where the persons who would normally obtain a grant have not been able to apply for a full grant beforehand. This is usually issued to an independent administrator to preserve the estate until the court proceedings are settled.
• A grant under Section 113 and 116 Senior Courts Act 1981 is a limited grant the court can issue to deal with any part of the deceased’s estate (s113) or to someone who would not normally be entitled to take out a grant (s116).
• A grant of double probate is when a grant has been issued with power reserved to another executor and that executor then wishes to act.

When do I need a grant of representation?

Although a grant gives a personal representative the authority to administer the estate, there are certain instances where action can be taken without a grant:

1. Assets passing to the personal representative

Under the Administration of Estates (Small Payments) Act 1965 (and Schedule 7 to the Building Societies Act 1986) the following can be paid out without a grant providing they have a maximum value of £5,000:

• bank and building society accounts, national savings products, friendly society and industrial and provident society deposit accounts
• arrears of salary, wages and superannuation benefits where the deceased was an employee of a central or local government department
• pensions where the deceased was a member of the police, fire authority, air force or army

It should be noted that the legislative figure is £5,000 but for some banks and building societies this figure can be higher depending on their own internal regulations and requirements. Payment is at their discretion and they can insist on seeing a grant.

If a grant is required, it may be possible to release assets before the grant is received to settle the funeral director’s account and to pay any initial inheritance tax due on the probate application. These funds are generally released directly to the funeral director or HMRC and not to the personal representative. They can include:

• personal assets such as personal effects, household property and cars. If these are not being sold, then they may need to be valued for inheritance tax purposes before being distributed in accordance with the will, letter of wishes or intestacy rules
• cash

2. Assets not passing to the personal representative

• Nominated assets – where the deceased has nominated a beneficiary of the asset with an institution, the asset will pass to them after sight of the death certificate.
• Some jointly-owned assets – each owner has an indivisible share which passes automatically to the surviving owner(s). Care should be taken with property to check whether it is held as beneficial joint tenants which will pass automatically by survivorship or as tenants-in-common whereby the deceased’s equitable share will pass under the terms of their will or intestacy which will require a grant.
• Gifts in anticipation of death (donatio mortis causa) - these are gifts which are made by an individual immediately before they die and are subject to four conditions. The deceased must have believed he was going to die soon, have made the gift on the condition that he died, have parted with the gift in some way, and the gift must be capable of being given away.

3. Assets which do not form part of the estate

• Life insurance policies held in trust – these pay direct to the trustees of the policy.
• Death in service benefit from an employer – this is usually a payment to either beneficiaries named by the deceased on a letter of wishes or at the discretion of the employers.
• Lump sum pension benefits - this is usually a payment to either beneficiaries named by the deceased on a letter of wishes or at the discretion of the pension company.

Do I need a grant of representation?

Administering the estate without a grant of representation may be possible in some circumstances and may save time and money, but it may also be beneficial to obtain a grant in any case to prove the deceased’s last will. It should be noted that claims issued under the Inheritance (Provision for Family and Dependants) Act 1975 must be made within six months from the date of issue of the grant, and this is a key reason for a personal representatives to obtain one.

About the author

Rachael Kell is an Associate Probate Manager at Wright Hassall, Rachael deals with the administration of individuals' estates and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

What to do after someone dies: a checklist

Place a Deceased Estates notice

What to do if a new will is found after an estate has been divided

Find out more

Making a will (Gov.uk)

Applying for probate (Gov.uk)

Inheritance (Provision for Family and Dependants) Act 1975 (Legislation)

Administration of Estates (Small Payments) Act 1965 (Legislation)

Building Societies Act 1986 (Legislation)

Image: Getty Images

Publication date: 10 January 2020