If a will is disputed by potential beneficiaries of an estate on the death of a person, those disputing the validity of the will can apply to the Probate Registry for a caveat to be placed against the deceased’s estate. This prevents the executors of the will from obtaining a grant of probate and stops them from administering the estate.
In these situations, it can take considerable time before the matter is resolved. In that time, not being able to collect and subsequently sell the assets of the estate may result in not only the deterioration of the asset, such as property but also in a reduction in the value of the estate.
In these circumstances, it may be possible to apply to a court for a limited grant of probate that allows the executors to continue administering the estate in order to protect its value, as well as pay any estate liabilities, such as tax.
What is a limited grant of probate?
In the UK, there are several reasons for contesting a will, and they are:
- Testamentary capacity – did the deceased have the required mental capacity to make a valid will?
- Due execution – there was a failure to meet the required formalities when making the will. For example, the will wasn’t correctly signed and witnessed.
- Insufficient knowledge and approval of the will – did the deceased know about and understand the meaning and/or content of the will?
- Under undue duress or influence – was the deceased under pressure from another party to make or change their will?
- Forgery or fraud – was any part of the will changed without authority, or were the signatures faked?
- Rectification and construction – is the will or any of its content unclear, ambiguous or does not carry out the deceased’s wishes or intentions?
Anyone that wishes to contest a deceased’s will must do so within six months of the date the grant of probate was issued. However, if the will is contested before the grant of probate has been granted, the executors of the deceased’s estate can no longer proceed with the administration of the estate.
In order to maintain and preserve the assets of the estate’s value and pay its liabilities, such as paying inheritance tax to HMRC, the executors (usually done via a solicitor as the person that applies must be independent of the dispute) can apply for a limited grant of probate.
Called a Grant ad colligenda bona, it means that the executors or administrator of an estate is granted permission to preserve the estate’s assets but not distribute any assets. However, they are in some cases allowed to continue with the sale of a property or other assets if they are not part of a beneficiary’s inheritance. In addition, HMRC will require a full account regarding the estate.
A limited grant of probate is only valid for six months. If the dispute hasn’t been resolved within that time, the executors will need to apply for a continuation of the limited grant of probate. Solicitors are also able to apply for a ‘grant pending determination of a probate claim’. Both provide the authority to gather in and preserve the deceased’s assets as part of their estate, and continue to administer the estate, but cannot distribute any part of the estate to beneficiaries, including any monetary amounts gathered, until the dispute has been resolved and full grant of probate or administration has been made by the Probate Registry.
Applying for a limited grant of probate in these circumstances, or if a caveat has been lodged with the court, means that the value of any assets that may depreciate in value if they are not maintained is preserved, thereby avoiding any potential of negligence allegations at a later date.
If any assets or funds that are part of the deceased’s estate are distributed, the personal representatives of the estate, i.e. the executors or solicitor, may be held personally liable for the assets or funds that have been paid out to beneficiaries.
Applying for a limited grant of probate
Applying for a limited grant of probate, which can include limited grants of administration to solicitors, grants pending suit (called pendente lite) and grants to the use and benefit of a minor, must be done through the Probate Registry.
The application must be supported by an Affidavit and Oath detailing the reasons why a limited grant of probate is required. For example, if a property forms part of the estate and due to the time taken to resolve any dispute, the empty property may fall into disrepair, a limited grant of probate may be granted to allow the executors to look after the property and preserve its value. Before the Probate Registry can issue the grant, it must also be approved by HMRC and the District Registrar. Although in urgent cases the grant can be approved quickly, most of the time it takes four to six weeks.
Once the Grant ad colligenda bona has been approved, it is important that the powers within the limited grant are not exceeded. In addition, once the dispute has been resolved to the satisfaction of all parties or all the information required has been gathered, the executors (or solicitor) of the deceased’s estate will still need to apply for a full grant of probate. Without this, they will not have the authorisation to distribute the estate’s assets to beneficiaries in accordance with the deceased’s wishes.
At Probates Online, we offer a will writing service or a Complete Estate Service to help you through the probate process and estate administration upon the death of a loved one. If you are looking for advice on inheritance tax, gifts or trusts, or need to apply for Grant of Probate, Letters of Administration or would like to take advantage of our entire Estate Administration service, visit our website for more information or contact us today.