Secondary Grants
Administration with Will Annexed
Where the will appoints no executor or an executor was appointed
- but has died,
- ceases to act or lacks mental capacity,
- is under a disability
- has left this country,
- has renounced or
- is not present,
an application may be made for letters of administration with the will annexed.
The terms of appointment of the executor may be insufficient or uncertain, so that an application to appoint another is required.
The person appointed is obliged to put the will in force in the same way as the executor.
Administrator with Will Annexed
The order of entitlement to take the grant is defined. In broad terms, it follows the interest. The persons entitled are as follows:
- any residuary legatee or devisee holding on trust for another;
- any residuary legatee or devisee for life;
- any other residuary legatee or devisee and, in some circumstances, their personal representative;
- any residuary legatee or devisee jointly with any ultimate residuary legatee or devisee on renunciation or consent of the remaining residuary legatees or devisees for life;
Where the residue is not disposed of in terms, the Probate Officer may allow a grant to a devisee or legatee to whom the deceased has disposed of, wholly or substantially, the whole of the estate. Where the residue is not wholly disposed of, the grant may be made to a person other than a creditor entitled to a grant in the event of total intestacy, in accordance with the intestacy rules.
Application Requirements
The application for the grant is broadly similar to that for a grant of probate. The requisite title is to be set out in the oath of the administrator.
The oath must demonstrate entitlement in the particular circumstances. It may, for example, show that no executor has been appointed, that the executor has died, renounced or is of unsound mind. It must show the entitlement in terms, for example, being the residuary legatee or other appropriate person entitled.
An Administration Bond is required. Formerly, this was required to be issued by an insurance company. In most cases, it need not be so issued.
Affidavits may be required in relation to the will, much the same as those which may be required in probate cases. It is necessary to prove the death, renunciation, citation and refusal of persons with prior entitlement. The other documents to be lodged are similar to those in respect of a grant.
Residuary Beneficiaries
A gift or devise of the residue implies a gift or disposition of the residual or remaining part of the estate. It may include a disposition of the entire estate.
Where the residue is not in terms wholly disposed of, the Probate Officer may, if he is of the opinion that the deceased has nonetheless disposed of the whole or substantially the whole of the estate, as ascertained at the date of the application, allow a grant to be made to any legatee or devisee entitled to share in the estate without regard to the person entitled to share in any residue not disposed of by the will.
A residuary devisee is a person receiving the remainder of the real property. A residuary legatee is the person receiving the residue of non-real property or immovables and intangible assets.
Where the residue lapses, the residue goes on intestacy.
Residuary Beneficiary Applicant
In practice, the residue legatee is the most common category of persons to take out letters of administration with the will annexed. This is the person entitled to the remainder of the estate after specific bequests. In theory, that person will receive the bulk of the estate, although; this may not necessarily be so depending on the extent of the debts and legacies relative to the entire estate.
The order of entitlement requires that persons with prior entitlement are “cleared off”. This requires that they have renounced, died or been cited and refused to take out administration with the will annexed.
If the residuary legatee or devisee died before the deceased or if none was appointed, there is a partial intestacy and the next of kin may apply. Where the residuary legatee survives but dies, his personal representative is entitled.
Where joint residuary legatees and devisees are named, all must apply for the letters of administration. Otherwise, the applicant must renounce his rights to do so. The personal representative of the survivor last may be entitled if they have died.
Administration De Bonis Non
Letters of administration de bonis non arise when an estate has not been administered under an earlier grant and the personal representative is now dead or is not available. They may be required to deal with previously undiscovered assets or to rectify title to a property, where it is still registered in the name of a person who has died many years earlier.
Where the person died testate, the second grant is called letters of administration with will annexed de bonis non. If the deceased died intestate, the second grant is letters of administration de bonis non.
The entitlement to take the grant de bonis non is prescribed by the Rules of the Superior Courts. The rules follow the interest and the entitlements as set down to in the Succession Act. The person next entitled and alive may apply.
Application Requirements
In order to apply for a grant de bonis non, the same broad proofs and requirements that apply to the primary grant are required. The primary grant, if it issued, must be surrendered.
Where it is not available, a certified copy must be taken from the probate office and lodged. If the primary grant is not available, its loss must be explained.
A shorter, less complex form of Inland Revenue affidavit was required in the case of a grant de bonis non. In the case of deaths prior to 1975, an older form relative to the former estate duties is required. The form requires particulars of the primary grant, details of the deceased’s name, address and particulars of the unadministered part of the estate, which must be included in the affidavit.
The oath exhibits the original grant or certified copy grant of probate. The entitlement of the applicant must be proved.
An administration bond is required. As with administration bonds generally, sureties are no longer required unless specifically required by the Probate Office. Because the will has been admitted to probate already, it is not necessary to give affidavits of due execution, implied condition, mental capacity etc.
Letters of administration intestate de bonis non, have similar requirements.