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 or have left this country., has renounced or is not present, an application may be made for letters of administration with the will annexed. Equally The appointment of the executor may be insufficiently certain as to be merely an appointment as such so that an application is required.
The person appointed is obliged to put the will in force in the same way as the executor. The order of entitlement is defined, and in broad terms 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, any person other than a creditor entitled to a grant in the event of total intestacy in accordance with the intestacy rules.
In practice, the residue legatee is the most common category of persons to take out letters of administration with a 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, the next of kin may apply and there is a partial intestacy. Where the residuary legatee survives but dies, his personal representative is entitled.
The application for the grant is broadly similar to that of a grant of probate. The requisite title is to be set out in the oath of an administrator.
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 would be 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.
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.
A gift or devise of the residue implies a transfer or the 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 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.
Where the residue lapses, the residue goes on intestacy.
Administration De Bonis Non
Letters of administration de bonis non arises when an estate has not been administered under and earlier grant and the personal representative is now dead or 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. They follow the interest and the entitlements as set down to in the Succession Act. The person next entitled and alive may apply.
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 is 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.B ecause 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.