Meg Edwards, trainee solicitor at Hugh James, explains the nuances of chains of representation and when they arise, and when a grant de bonis non administratis will be required.
Chains of representation: what are they and how do they work?
Where a deceased dies testate and the executor is living, and able and willing to act, a grant of probate is obtained and the executor will administer the estate. The estate will be the executor’s responsibility until it is concluded; they will have a duty to act in its best interests and to maximise its value. Some estates can take a long time to be administered (due to their size, complexity or unforeseen delays). So, what happens if an executor dies before they have finalised the estate?
Provided that the executor themselves has left a will, their named executor can continue to administer the first-deceased’s estate as provided for by section 7 Administration of Estates Act 1925 (“AEA 1925”). This is known as the “chain of representation” and is more easily demonstrated by way of an example:
Allen dies testate. In his will, he names Betty as his executor. Betty obtains a grant of probate in Allen’s estate but dies before the estate is finalised. Betty’s will names Frank as executor. As Betty obtained a grant of probate in Allen’s estate before she died, this means that Frank can act in finalising Allen’s estate as well as administering Betty’s.
Provided Frank obtained a grant of probate bearing his name as executor in Betty’s estate, he need not obtain a grant bearing his name in Allen’s estate too. Instead, the grant of probate bearing Betty’s name would suffice and enable him to continue to administer Allen’s estate. This is a simplistic example of how the chain of representation works in practice.
Should Frank then pass away, naming an executor in his will, that executor could act in Frank’s estate, Betty’s estate and Allen’s estate. Theoretically, the chain of representation could go on and on, provided that each executor who dies has themself left a will appointing an executor.
When is the chain of representation broken?
Section 7(3) AEA 1925 provides for the instances in which the chain of representation will be broken.
The chain of representation will not apply (or had it previously applied, will be broken), when a person dies intestate. For example, using the above scenario, if Betty were to die intestate having failed to finalise Allen’s estate, the intestacy rules would apply, and the order of priority would determine who was entitled to administer each of Allen and Betty’s estates. This will also be the case should the executor have left a will which failed to name an executor.
Another consideration to bear in mind is that the chain of representation will not be applicable where more than one executor is appointed, and they survive the deceased executor. In this case, the surviving executor(s) can continue to administer the estate in line with the terms of the will. This is the case even where the surviving executor had chosen to act with power reserved. The surviving executor with power reserved may choose to revive their right to probate following the death of the acting executor, in which case the chain of representation will not apply.
It is also important to note that the chain of representation will not apply where an executor in the chain has failed to obtain a grant of probate. For example, had Betty failed to obtain a grant in Allen’s estate before she died, Frank would not be entitled to administer Allen’s estate and could only apply for a grant of probate in Betty’s estate.
Grant de bonis non administratis
A “grant de bonis non” (which translates literally to a grant “of goods not administered”) will be required where the personal representative or executor of an estate dies without having completed the administration of the estate and without having left a will themselves, i.e. where the chain of representation does not apply.
The order of priority set out in section 22 of the Non-Contentious Probate Rules 1987 will apply in relation to who is entitled to apply for a grant de bonis non and therefore those of higher priority will need to be “cleared off” by any applicant who is further down the line. The applicant, once granted probate, will be the administrator of the estate. By way of an example:
John dies appointing Lois as executor of his estate. Lois begins to administer John’s estate but dies before the administration is complete. Lois does not have a will and therefore the chain of representation does not apply. In this case, John’s sister, Pam, applies for a grant de bonis non and is appointed as administrator (having cleared off John’s wife, children and parents, all of whom died before John).
The process of applying for a grant de bonis non is similar to that of a normal grant application, though there are some additional probate registry requirements to be met, which are set out in more detail in Tristram & Coote’s Probate Practice.
It is worth bearing in mind that another reason for applying for a grant de bonis non would be where the remaining executor of an estate loses capacity before administration is complete and is therefore unable to act.
Meg is a trainee solicitor at Hugh James, currently sitting in her second seat with the Trusts and Estates Administration team.