KSL ATP Probate cheat sheet

Testamentary capacity (Banks v Goodfellow): testator must understand the nature of the act, the extent of property, claims of those reasonably expected, and be free from disorder of mind.

Valid will execution (Wills Act 1837 s.9): signed by testator in presence of two witnesses present at same time, who attest and sign in testator's presence.

Intestacy (Administration of Estates Act 1925 s.46): spouse/civil partner takes personal chattels, statutory legacy, and half residue (if issue) or all residue (if no issue); issue take remaining half on statutory trusts.

Statutory legacy figure is updated periodically by order; check current amount (e.g., £322,000 for deaths on or after 26 July 2023).

Doctrine of lapse: a gift to a beneficiary who predeceases the testator fails unless contrary intention; exceptions include class gifts and s.33 Wills Act 1837 (issue of testator).

Ademption: specific gift fails if property no longer owned at death; abatement order for insufficient estate: expenses, then debts, then specific, then general, then demonstrative, then residuary legacies.

Rules of construction: golden rule (literal meaning unless absurd), armchair rule (circumstances at will execution), presumption against intestacy and against revocation.

Revocation: by marriage (unless will made in contemplation), by later will or codicil, or by physical destruction with intention to revoke.

Mutual wills doctrine creates a constructive trust; secret trusts (fully and half-secret) enforce promises outside the will.

Probate jurisdiction: High Court (Family Division) under Senior Courts Act 1981 s.25; contentious probate in Chancery Division; non-contentious probate in Principal Registry or district probate registries.

Types of grant: probate (with will), letters of administration with will annexed (will but no executor), letters of administration (intestacy), and grants de bonis non, pendente lite, ad colligenda bona, and limited grants.

Priority for administration (Non-Contentious Probate Rules 1987 r.20): spouse/civil partner, then children, then parents, then siblings, then grandparents, then uncles/aunts, then the Crown.

Executor's renunciation: must be in writing signed and filed before taking any step in administration; once intermeddled, renunciation not permitted.

Power of attorney for executor: may appoint attorney to apply for grant or administer, but attorney cannot delegate; must be filed with registry.

Caveat: warns registrar not to issue a grant without notice; valid for 6 months and renewable; warning and appearance procedure follows.

Citation to accept or refuse probate or administration compels a person with prior right to take or renounce the grant.

Grant of probate is conclusive evidence of the will's validity and executor's authority, but may be revoked for fraud or later will.

Probate court may pronounce for or against a will, order rectification (Administration of Justice Act 1982 s.20) and grant limited grants.

Executor's year (Administration of Estates Act 1925 s.44): personal representatives not bound to distribute before one year from death; creditors cannot sue until then.

Duties of PRs: collect assets, pay debts and taxes, distribute to beneficiaries, keep accounts, and act in best interests of estate.

Powers: sell/convey property, appropriate assets to beneficiaries (s.41 AEA 1925), postpone sale, insure, borrow, and execute deeds.

Order of application of assets (AEA 1925 s.34 and Schedule 1): property not disposed of by will, then residuary, then general legacies, then specific gifts.

Insolvent estates: administration insolvency rules apply; secured creditors paid first, then funeral/administration expenses, preferential debts, then unsecured.

PRs are personally liable for devasting assets (retaining assets after notice of claim) and for paying out to beneficiaries without preserving funds for creditors.

Accounting: PRs must keep full accounts and produce them on request; beneficiaries may apply for inventory and account.

Assents: transfer of estate property to beneficiaries after administration; must be in writing and comply with formalities for land (s.36 AEA 1925).

Distribution: PRs must clear debts and liabilities before distributing; retain sufficient assets for unknown claims; advertise for creditors under Trustee Act 1925 s.27.

Non-Contentious Probate Rules 1987 govern procedure; forms prescribed in Practice Directions and Probate Practice Guides.

Probate application forms: PA1P (probate with will), PA1A (administration intestacy), PA2 (probate inventory), PA3 (oath), PA4 (administration oath).

Statement of truth: application must be verified by statement of truth; false statement may be contempt of court.

Probate fees: current fee for estates over £5,000 is £273 (check current fee order); exempt estates under £5,000; additional copies £1.50 each.

Inheritance tax: form IHT400 or IHT205 (except where excepted) must be submitted; grant not issued without HMRC receipt or exemption.

Caveat form: PA8B; warning form PA8A; appearance PA8C; citation forms PA9, PA10, PA11.

Probate application may be made online or by post; supporting documents include original will, death certificate, and IHT forms.

Practice: registrar may require affidavits or further evidence; applications for grants in solemn form require citation to interested parties.

Retention of documents: PRs should retain original will and grant; copies available from registry.

PRs are trustees of estate assets; fiduciary duties of loyalty, no self-dealing, invest prudently (Trustee Act 2000 s.3), and act unanimously.

Trustee Act 2000: statutory duty of care (s.1), general power of investment (s.3), power to acquire land (s.8), and power to appoint agents (s.11).

Beneficiaries' rights: to information, to compel administration, to apply for court directions, and to remove trustees under s.50 AJA 1982 or inherent jurisdiction.

Remuneration of PRs: only if authorised by will, court, or statutory provision; otherwise gratuitous.

Conflict of interest: PRs must not put themselves in position where duty and interest conflict; fair-dealing rule for purchases from estate.

Delegation: PRs may delegate investment management but not dispositive functions; must review agent's work.

Trustees' powers: maintenance (s.31 Trustee Act 1925), advancement (s.32), and appropriation (s.41 AEA 1925).

Liability: PRs liable for breach of trust; relief under s.61 Trustee Act 1925 if acted honestly and reasonably.

Beneficiaries may bring claims for breach of fiduciary duty, maladministration, or to remove PRs for misconduct.

Inheritance Tax Act 1984: charge on death estate at 40% above nil-rate band (£325,000 frozen until 2028); residence nil-rate band up to £175,000 with taper above £2m estate.

Inheritance Tax Act 1984: charge on death estate at 40% above nil-rate band (£325,000 frozen until 2028); residence nil-rate band up to £175,000 with taper above £2m estate.

Inheritance Tax Act 1984: charge on death estate at 40% above nil-rate band (£325,000 frozen until 2028); residence nil-rate band up to £175,000 with taper above £2m estate.

Inheritance Tax Act 1984: charge on death estate at 40% above nil-rate band (£325,000 frozen until 2028); residence nil-rate band up to £175,000 with taper above £2m estate.

Inheritance Tax Act 1984: charge on death estate at 40% above nil-rate band (£325,000 frozen until 2028); residence nil-rate band up to £175,000 with taper above £2m estate.

Inheritance Tax Act 1984: charge on death estate at 40% above nil-rate band (£325,000 frozen until 2028); residence nil-rate band up to £175,000 with taper above £2m estate.

Inheritance Tax Act 1984: charge on death estate at 40% above nil-rate band (£325,000 frozen until 2028); residence nil-rate band up to £175,000 with taper above £2m estate.

Inheritance Tax Act 1984: charge on death estate at 40% above nil-rate band (£325,000 frozen until 2028); residence nil-rate band up to £175,000 with taper above £2m estate.

Inheritance Tax Act 1984: charge on death estate at 40% above nil-rate band (£325,000 frozen until 2028); residence nil-rate band up to £175,000 with taper above £2m estate.

Inheritance tax due six months after end of month of death; interest runs on unpaid tax; PRs personally liable for tax on estate.

Capital gains tax: PRs acquire assets at probate value; disposals during administration may attract CGT; main residence relief may apply.

Income tax: estate income taxed at basic rate for first 3 years; thereafter at 45% (or 39.35% dividends) for discretionary trusts; PRs must report.

Probate fees: current fee £273 for estates over £5,000 (check current fee order); additional copies £1.50 each; remissions for low-income applicants.

Inheritance tax forms: IHT400 (full account) and IHT205 (short form) if excepted estate; IHT421 receipt from HMRC required for grant.

Excepted estates: gross value under £3m and no IHT due; certain conditions apply; otherwise full IHT400 required.

Tax on lifetime gifts: potentially exempt transfers (PETs) fail if donor dies within 7 years; taper relief applies to tax on failed PETs.

Business and agricultural relief: 100% or 50% relief on qualifying assets; need to consider before death for estate planning.

PRs must pay IHT before grant (or arrange instalments); grant not issued without HMRC clearance (form IHT421).

SRA Standards and Regulations: act in client's best interests, provide competent service, maintain confidentiality, and avoid conflicts of interest.

SRA Accounts Rules: client money must be held in separate client account; no use of client money for business purposes; keep accurate records.

Confidentiality: duty of confidentiality continues after death; disclosure only with consent of PRs or court order.

Conflicts of interest: where acting for multiple beneficiaries or PRs, obtain informed consent or decline; duty of undivided loyalty.

Client care: provide clear costs information (SRA Transparency Rules), terms of business, and complaints procedure.

Vulnerable clients: assess capacity and undue influence; consider independent advice and record instructions carefully.

Money laundering: comply with AML regulations; customer due diligence for estate administration; report suspicious activity.

Professional indemnity insurance: mandatory for SRA-regulated firms; check coverage for probate work.

Undertakings: personal and binding; must be honoured; breach may lead to disciplinary action.