Grant of representation
Discussion
Good afternoon all. Yet again I need some advice from this amazing web site.
My wife is executor for her dear Aunty. Problem is that her Aunty is in a home unable to make any decisions for herself. She has to apply for A grant of representation to allow her to deal with her Aunty's late husbands will.And act on her behalf.
How does she apply for grant of representation ?
Many thanks in advance...
Glenn
My wife is executor for her dear Aunty. Problem is that her Aunty is in a home unable to make any decisions for herself. She has to apply for A grant of representation to allow her to deal with her Aunty's late husbands will.And act on her behalf.
How does she apply for grant of representation ?
Many thanks in advance...
Glenn
Acting on her behalf looks like requiring a Lasting Power of Attorney.
https://www.ageuk.org.uk/information-advice/money-...
https://www.ageuk.org.uk/information-advice/money-...
If your wife is an executor and there is a will. I don't think she needs anything else.
I think your terminology may be confused, I don;t think that grant of representation is a thing. There is a grant of letters of administration needed if there is no will. And as has been pointed out, lasting power of attorney to act on someone else's behalf (who is alive).
I think your terminology may be confused, I don;t think that grant of representation is a thing. There is a grant of letters of administration needed if there is no will. And as has been pointed out, lasting power of attorney to act on someone else's behalf (who is alive).
I think you could be in for a world of pain here. Leaving a will without an executor willing or able to act can get very messy.
The first thing to check is whether
(a) your wife has power of attorney over her aunt - just being an executor of her will isn't enough
(b) her aunt is the main beneficiary of her late husband's will
(c) your wife is a beneficiary of the will.
If none of those are true then there is very little you are legally allowed to do. Applying for power of attorney at this point is possible but difficult but without that your wife has no power at all to act here, unless she is also a beneficiary of the will and can act under point (4) below. But in that case I would strongly consider whether she wants to (she cannot be compelled to) as doubtless there will be other beneficiaries who will want to pitch in, helpfully or otherwise.
Even if she has power of attorney, she doesn't then get to administer the will automatically. This https://www.thegazette.co.uk/all-notices/content/1... is a decent summary but fundamentally there is a hierarchy of people who can act as executors in this circumstance:
1: a trustee of the ‘residuary estate’ (the assets left in a deceased person's estate after all gifts are bequeathed and all debts, taxes and fees have been paid)
2: a residuary beneficiary
3: a personal representative of any residuary beneficiary
4: a ‘legatee’ (a person who receives a legacy) or a creditor of the deceased
5: a personal representative of a legatee or creditor of the deceased
If her aunt is the main beneficiary of the will, and if your wife is attorney, then she gets to act under clause (3).
But if any of that doesn't make sense, and your aunt is the main beneficiary of the will, then I would strongly recommend that you seek legal advice here. Even if it does make sense it is probably easier to leave it to the lawyers. But if your aunt isn't the main beneficiary then frankly it's largely out of your wife's hands and she should leave it to those who are.
The first thing to check is whether
(a) your wife has power of attorney over her aunt - just being an executor of her will isn't enough
(b) her aunt is the main beneficiary of her late husband's will
(c) your wife is a beneficiary of the will.
If none of those are true then there is very little you are legally allowed to do. Applying for power of attorney at this point is possible but difficult but without that your wife has no power at all to act here, unless she is also a beneficiary of the will and can act under point (4) below. But in that case I would strongly consider whether she wants to (she cannot be compelled to) as doubtless there will be other beneficiaries who will want to pitch in, helpfully or otherwise.
Even if she has power of attorney, she doesn't then get to administer the will automatically. This https://www.thegazette.co.uk/all-notices/content/1... is a decent summary but fundamentally there is a hierarchy of people who can act as executors in this circumstance:
1: a trustee of the ‘residuary estate’ (the assets left in a deceased person's estate after all gifts are bequeathed and all debts, taxes and fees have been paid)
2: a residuary beneficiary
3: a personal representative of any residuary beneficiary
4: a ‘legatee’ (a person who receives a legacy) or a creditor of the deceased
5: a personal representative of a legatee or creditor of the deceased
If her aunt is the main beneficiary of the will, and if your wife is attorney, then she gets to act under clause (3).
But if any of that doesn't make sense, and your aunt is the main beneficiary of the will, then I would strongly recommend that you seek legal advice here. Even if it does make sense it is probably easier to leave it to the lawyers. But if your aunt isn't the main beneficiary then frankly it's largely out of your wife's hands and she should leave it to those who are.
Edited by deckster on Sunday 17th September 18:42
The first point to establish is who is the executor for the dead husband?
If it is the aunt, and she is non compos mentis, and no lasting power of attorney is in place, then as said, the court of protection is probably the next step.
Is the aunt able to understand and agree to an LPA?
Wife being aunt's executor isn't relevant as such while aunt is still alive.
If it is the aunt, and she is non compos mentis, and no lasting power of attorney is in place, then as said, the court of protection is probably the next step.
Is the aunt able to understand and agree to an LPA?
Wife being aunt's executor isn't relevant as such while aunt is still alive.
Thank you for replies so far, more info is that my wife has LPA for her Auntie. But her Auntie is the sole executor for her dead husband. As she has no capacity to deal as executor, my wife needs to act on her behalf. She is not a beneficiary of the will. She has been told that she needs grant of representation?
Both my wife and I have worked extensively to care for her Auntie and Uncle while the only son does nothing even thou he's 52yrs old !! . Living nightmare so far....
Both my wife and I have worked extensively to care for her Auntie and Uncle while the only son does nothing even thou he's 52yrs old !! . Living nightmare so far....
Has your wife spoken with the probate registry? She is not obligated to act as personal representative as her aunt's attorney. If she chooses to apply for the grant the starting point would be the probate registry. I believe the application process is as normal - and it isn't complicated - but your wife would have to attach a copy of the grant of POA and a copy of the Will to the application.
glennjamin said:
Thank you for replies so far, more info is that my wife has LPA for her Auntie. But her Auntie is the sole executor for her dead husband. As she has no capacity to deal as executor, my wife needs to act on her behalf. She is not a beneficiary of the will. She has been told that she needs grant of representation?
Both my wife and I have worked extensively to care for her Auntie and Uncle while the only son does nothing even thou he's 52yrs old !! . Living nightmare so far....
IANAL but from a bit of experience, I think your wife can just apply for probate on the basis of the LPA, and job done. Who is telling her differently? Have a look at the Gov.UK notes on probate, Grant of Probate is a form of Grant of Representation.Both my wife and I have worked extensively to care for her Auntie and Uncle while the only son does nothing even thou he's 52yrs old !! . Living nightmare so far....
I do sympathise, it can be a nightmare, especially with useless family members putting a spoke in. Ignore them.
konark said:
Technically your wife only becomes executor when her aunty dies.
LPA is fairly cheap and straightforward IF the aunty is compos mentis. If not you're looking at the court of protection and a world of pain.
This…..my sister and i applied to the COP in Dec 2022 in respect of my father who had refused to set up an LPA as he LPA is fairly cheap and straightforward IF the aunty is compos mentis. If not you're looking at the court of protection and a world of pain.
“ would tell us when he needed one” he was a retired solicitor which made his refusal even more galling.He subsequently was diagnosed with vascular dementia and had to go into a home at which point with no access to any funds and now unable to set up said LPA as he didn’t have capacity,we made the application.Guidlines are 4 to 6 months.The forms are a PITA .
He passed away in August 8 months down the line still with no decision from the COP and now the application is redundant as it changes to an executor process .
If you do the right thing then at the end of the day you can't be held to criticism.
Have a web chat with HMCTS Courts and Tribunals Service which is the Probate Office.
As a web chat you will get a written transcript.
You won't get the right answers at first because you don't know what is right questions but keep calling them back until you get someone who knows their stuff and can help you.
Often the queue is too long to join so use this link which will allow you to join the queue even when it is full and wait for an adviser to be available (when the office is open).
https://www.apply-for-probate.service.gov.uk/avaya...
Have a web chat with HMCTS Courts and Tribunals Service which is the Probate Office.
As a web chat you will get a written transcript.
You won't get the right answers at first because you don't know what is right questions but keep calling them back until you get someone who knows their stuff and can help you.
Often the queue is too long to join so use this link which will allow you to join the queue even when it is full and wait for an adviser to be available (when the office is open).
https://www.apply-for-probate.service.gov.uk/avaya...
As your wife is attorney for her aunt under a Lasting Power of Attorney she can apply for a grant of representation to the uncle's estate on behalf of her aunt.
She'll need to obtain a medical certificate to the effect that the aunt has lost mental capacity, but other than that there should be no major problems.
She'll need to obtain a medical certificate to the effect that the aunt has lost mental capacity, but other than that there should be no major problems.
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