20.1 Grants of Representation and Order of Priority
Key Takeaways
- A grant of representation is the court order that proves who may collect, sell and give good receipt for assets in the deceased's name; property that already passes by survivorship or sits in a trust does not need a grant for that asset.
- Non-Contentious Probate Rules 1987 r.20 puts a proving executor first where there is a will; if no executor proves, residuary legatees holding in trust outrank other residuary beneficiaries, then their personal representatives, then other legatees or creditors.
- NCPR r.22 on total intestacy follows beneficial classes: surviving spouse or civil partner, then issue, then parents, then whole-blood siblings and their issue, then half-blood siblings, grandparents, uncles and aunts, with the Treasury Solicitor and then creditors only after those classes are cleared.
- Senior Courts Act 1981 s.114 caps the number of personal representatives at four, and the two-grantee rule for a minority or life interest does not apply to a grant of probate to a sole proving executor.
- NCPR r.22(4) is a common trap: the personal representative of a spouse or civil partner who died without taking the whole estate is postponed to living persons in classes (b) to (h).
SQE1 FLK2 treats the grant application as a functioning-legal-knowledge problem, not a form-filling exercise. You are expected to choose the correct grant, the correct applicant, the evidence the registry will actually want, and the Inheritance Tax consequences of issuing that grant. This independent OpenExamPrep chapter covers the probate-practice and estate-taxation topics in the SRA FLK2 specification that applies from September 2026. It does not claim any official approval from the SRA, HMRC or the Probate Service.
Why a grant is needed
A grant of representation is the High Court's order identifying who may stand in the deceased's shoes. Executors take their authority from the will, but they still need the grant as proof when a bank, registrar of companies or HM Land Registry will only take instructions from the person named on it. Administrators have no authority at all until the grant issues: their title is created by the grant, not by the intestacy rules.
You do not need a grant to deal with every asset that existed on death. Property that the deceased held as a beneficial joint tenant passes to the survivor by survivorship and never forms part of the succession estate, even though the deceased's share is still in the Inheritance Tax estate. Assets already held on trust for others are dealt with by the trustees under the trust instrument. Life policies written in trust, discretionary pension death benefits paid by the scheme, and nominated friendly-society or similar small payments can often be collected without a grant. Chattels and cash in the deceased's possession can be secured immediately. Many banks will also release modest balances on a small-estates indemnity; that is a commercial concession, not a substitute for a grant if a registered title, a shareholding or a substantial account stands in the deceased's sole name.
Worked contrast: Amira and Ben own the family home as beneficial joint tenants and Amira also holds £40,000 of quoted shares in her sole name. On Amira's death Ben is already the sole legal and beneficial owner of the house. He still needs a grant (as executor or administrator) before the share registrar will register a transfer of the £40,000 holding.
The three grants FLK2 actually tests
| Grant | When it issues | Who takes it |
|---|---|---|
| Probate | Valid will, and at least one executor is able and willing to prove | The proving executor(s) |
| Letters of administration with will annexed | Valid will, but no executor proves (dead, has renounced, is a minor, lacks capacity, or power is reserved and no one is proving now) | The first available NCPR r.20 class after executors |
| Letters of administration | Total intestacy (no valid will) | The first available NCPR r.22 class with a beneficial interest |
A person who is named as executor may renounce in writing (NCPR r.37) provided they have not intermeddled. Intermeddling — collecting assets, paying debts as if already appointed, or otherwise behaving as executor — can prevent a clean renunciation and risks executor de son tort liability. An executor who does not wish to act now, but does not want to give up the office, may have power reserved; a later double probate can issue to that person. Chain of representation under Administration of Estates Act 1925 s.7 is a separate mechanism: the proving executor of a last surviving proving executor becomes executor of the original estate automatically, so a fresh grant is not always required.
Senior Courts Act 1981 s.114 caps the number of personal representatives at four. Where the grant is one of administration and a life interest or a minority interest arises, two administrators (or a trust corporation) are required unless the court directs otherwise. That double-grantee rule does not apply to a grant of probate to a sole proving executor.
NCPR order of priority where there is a will
NCPR r.20 is a ladder. A person in a lower class cannot take a grant until everyone in every higher class has been cleared off by death, renunciation, or citation. The current order is:
| Priority | Class (NCPR r.20) | Typical grant |
|---|---|---|
| (a) | Executor (subject to the trust-corporation rule in r.36(4)(d)) | Probate |
| (b) | Residuary legatee or devisee holding in trust for another | Administration with will annexed |
| (c) | Any other residuary legatee or devisee, including one for life; or a person entitled to undisposed-of residue (including the Treasury Solicitor claiming bona vacantia), with vested interests preferred to contingent ones unless a registrar directs otherwise | Administration with will annexed |
| (d) | Personal representative of a residuary beneficiary (not one for life or holding in trust) or of a person entitled to undisposed-of residue | Administration with will annexed |
| (e) | Any other legatee or devisee (including one for life or holding in trust) or a creditor; vested gifts preferred to contingent ones | Administration with will annexed |
| (f) | Personal representative of any other legatee or devisee (not for life or holding in trust) or of a creditor | Administration with will annexed |
Exam trap: residue left "to Nina on trust for my grandchildren" puts Nina in class (b). The grandchildren are not in class (b). A pecuniary legatee is only in class (e) and cannot leapfrog Nina. A creditor is also class (e) and is a last-resort applicant after the beneficial classes are cleared.
NCPR order of priority on intestacy
NCPR r.22 applies where the deceased died wholly intestate on or after 1 January 1926. Only a person with a beneficial interest in the estate may take a grant in the first eight classes. The order is:
| Priority | Class (NCPR r.22(1)) |
|---|---|
| (a) | Surviving spouse or civil partner |
| (b) | Children of the deceased, and issue of a child who died before the deceased |
| (c) | Father and mother |
| (d) | Whole-blood brothers and sisters, and issue of a predeceasing whole-blood sibling |
| (e) | Half-blood brothers and sisters, and their issue |
| (f) | Grandparents |
| (g) | Whole-blood uncles and aunts, and issue of a predeceasing whole-blood uncle or aunt |
| (h) | Half-blood uncles and aunts, and their issue |
If nobody in those classes has a beneficial interest, the Treasury Solicitor may take a grant claiming bona vacantia (r.22(2)). Only after all of the above are cleared may a creditor, or a person who would take on an accretion to the estate, apply (r.22(3)). Rule 22(4) is a favourite trap: the personal representative of a spouse or civil partner who died without taking the whole estate is postponed to living persons in classes (b) to (h). So if a widow dies before taking out a grant, the deceased's children outrank the widow's own executors.
Clearing off and same-degree disputes are different problems. Clearing off is how you remove a higher class. NCPR r.27 deals with two people entitled in the same degree: any of them may apply, notice is given to the others, and a registrar may prefer the person who has majority support among those entitled in that degree.
Application procedure and evidence
Practitioner applications go through the online probate service under NCPR r.4A; personal applicants have their own online routes. The oath has been replaced by a statement of truth (NCPR r.8). The registry still wants the same underlying proof, even though the vehicle is now a statement rather than a sworn oath.
Grant of probate — evidence
- Death: official copy of the death certificate.
- Will: the original will and any original codicils, not photocopies, plus copies for the record.
- Applicant: that the applicant is the executor named in the will (or the survivor of several, or the one who is proving with power reserved to the others).
- Due execution: a will that appears duly executed on its face is normally admitted without more. If an attesting witness cannot be found, the testator was blind or illiterate, the will is damaged, or there are signs of attempted revocation, NCPR rr.12–16 require a witness statement as to due execution, terms, condition or date.
- Tax: either an excepted-estate declaration on the probate application, or HMRC confirmation (commonly via the IHT421 process after an IHT400) that the account has been delivered and any tax that must be paid before the grant has been paid or is being paid on instalments.
Letters of administration with will annexed — extra evidence
Everything required for probate, plus proof that the executor title has been cleared: death certificate of a named executor, a filed renunciation, a citation, or a statement that power is reserved and nobody is proving. Then prove why this applicant is the first uncleared r.20 class. A residuary trustee produces the will showing the trust. A person entitled to undisposed-of residue produces the partial intestacy calculation.
Letters of administration — extra evidence
There is no will to exhibit. Prove the relationship that puts the applicant into the first uncleared r.22 class (marriage or civil partnership certificate, birth certificates tracing issue, and so on), and that persons with a prior right have been cleared. If a minority or life interest arises, the application must name two administrators or a trust corporation unless a registrar directs otherwise.
A woman dies owning a house as beneficial joint tenant with her civil partner and a holding of quoted shares in her sole name. There is a valid will appointing the civil partner as executor. Which statement about the need for a grant is correct?
A valid will appoints Omar as sole executor and leaves residue to Priya on trust for Priya's two adult children. Omar files a written renunciation before intermeddling. Who has the first right to a grant of letters of administration with the will annexed?