Obtaining Letters of Administration
The decision to apply for a grant is normally made after consideration of the assets of the estate which must be dealt with. In many estates the question asked is: can the assets of the estate be collected by the executor or entitled administrator or transferred to appropriate beneficiaries without a grant? If so, then it may be appropriate to seek to avoid the expense and time involved in obtaining one. It is for this reason that in correspondence seeking to verify assets of the estate the party often will be asked whether sighting a grant will be required before allowing the asset concerned to be dealt with. Strictly, any party holding assets of the deceased, no matter what their value, may insist on sighting a grant before allowing the asset to be dealt with.
However, even when it is possible to deal with all the assets of the estate without obtaining a grant, it may nonetheless be prudent or appropriate to obtain one.
First, obtaining a grant virtually always will afford a personal representative the protection of s 53(4), Succession Act . Relevant factors in deciding the importance or otherwise of s 53(4) protection include: the size of the estate. Clearly the larger the estate the greater the risk; the deceased died testate or intestate; and the will proposed to be acted upon is the deceased’s last will and is free from difficulties and the proportion of the estate to which the client expects to succeed. A client might be prepared to assume a greater degree of risk where he or she is the sole beneficiary or a substantial beneficiary of the estate.
Secondly, in most instances the personal representative or entitled personal representative will be required to provide an indemnity to the bank, building society or company which agrees to dispense with production of a grant.
Notice of intention to apply for a grant of representation
The law requires that at least fourteen days before an application for a grant is filed, notice of the intended application must be given in the approved form.
Before placing the advertisement in a local newspaper it is essential to ensure that it is one ‘circulating and sold at least once each week in the area of the deceased’s last known address.