Probate introduction

1. Dealing with a deceased person’s estate

This information is provided to help you if you are dealing with the estate of a person who has died (the deceased). We recognise the difficulties that many people face when dealing with an estate after a death and we hope that the following information will make your task a little less difficult.

This information is produced to give general guidance only and should not be treated as a complete and authoritative statement of the law. The information deals only with applications to the Isle of Man Courts. Please note that staff members are prohibited from giving legal advice or offering opinions and therefore if you are in any doubt about your rights, or of the procedures to follow in relation to obtaining probate or administration of a deceased person’s estate, you should seek legal advice.

2. What is a Grant of Representation?

When a person dies somebody has to deal with their estate (money, property and possessions left) by collecting in all the money, paying any debts and distributing what is left to those people entitled to it. Probate (from a Latin word, meaning ‘proof’) is the Court’s authority, given to a person or persons to administer a deceased person’s estate and the document issued by the Court is called a Grant of Representation. This document is usually required by the asset holders as proof to show the correct person or persons have the Court’s authority to administer a deceased person’s estate.

There are three main types of grant:-

Probate – issued to the executor(s) named in the will
Letters of Administration with Will Annexed – issued to someone other than an executor when the deceased left a will
Letters of Administration – issued when the deceased did not leave a will (this is called “dying intestate”)

The grant provides the names and addresses of the executors or administrators. Throughout this information the word “grant” will be used and this refers to all types of grant of representation.

3. Why is a grant of representation needed?

To protect the interests of the estate and beneficiaries. Before releasing money or other assets owned by the deceased, those holding the assets (such as banks) need to know that they are dealing with someone who has the legal authority to deal with the deceased’s affairs. The grant of representation provides that assurance.
To confirm that the will made by the person who has died is valid (however, though very few cases arise, the validity of a will remains open to challenge after probate has been granted).

Please note: the Court does not require or insist on probate being applied for.

4. Is a grant needed in all cases?

No.

It may not be necessary to obtain a grant where a home is held in joint names and is passing by survivorship to the other joint owner.
Where a joint bank or building society account is held, production of a death certificate may be sufficient for the monies to be transferred to the joint holder.
Certain institutions may release monies without a grant being produced if the amount held by the deceased was small. Apply to the institutions to see if they will release monies without a grant.

5. How is a grant of representation obtained?

By applying to the Probate Office. Applications can be made personally, or through an advocate, and may be made by post.

Please note: Staff of the Probate Office can offer procedural guidance on how to obtain a grant; they cannot provide legal advice.

6. When can a grant be obtained? (How soon after the death of the deceased?)

Unless the permission of the Civil Division of the High Court is obtained, no grant of probate or of administration with the will annexed shall issue within seven days of the death of the deceased. If the deceased person did not leave a will (i.e. died intestate), then except with the permission of the Civil Division of the High Court, no grant of administration shall issue within fourteen days of the death of the deceased.

7. Can I apply for a grant?

If the deceased left a will, the executor appointed by the deceased’s will may, if he is aged 18 or over, apply for probate of the will. If the will appoints more than one executor the Court will normally make a grant to all of them, subject to a maximum of 4 persons, unless any of the executors appointed are unable to, or decide not to, take a grant. If the executor is under 18, and no other executor over 18 is able or willing to take a grant, a grant may be made to his parents or guardian until he is 18.

If the deceased left a will but did not appoint an executor, or the executor cannot or will not act, then the person entitled to the residue of the estate, or any other beneficiary as the case may be, under the will may apply for letters of administration. A creditor of the estate, or a person who would be entitled to the estate if there was no will, may also be entitled to apply.

If the deceased did not leave a will then letters of administration will normally be granted to a person who is entitled to the estate, or a share of the estate, under the rules of law governing distribution on “intestacy”. In this case, notice of the application must be given to everyone who is entitled to share in the estate and is resident in the Isle of Man. Further details about distribution on intestacy, and categories of persons entitled to receive notice, can be found under Part III of the Administration of Estates Act 1990 a copy of which can be obtained from the Tynwald Library, contact details for which can be found on the Tynwald website.

You may in certain circumstances apply on behalf of someone else (see also Question 8 below). If this is the case you will need to make it clear why you are making the application and you will need to provide documentary evidence, authorising you to act in the capacity as applicant, in support of your application.

8. Can somebody else make the application on my behalf?

A person appointed as your lawful attorney may make the application on your behalf. The Power of Attorney authorising the person to act on your behalf will need to be submitted in support of the application.

9. What is a Power of Attorney?

A Power of Attorney is a written instrument (document) that authorises a person to act on another person’s behalf to the extent indicated in the instrument. If a person is thinking about making a power of attorney in someone else’s favour, it is advisable to seek legal advice about the form and effect before doing so.

10. What if there is more than one executor?

Even if there is more than one executor, it may still be possible for just one of the executors to apply for probate and sort out the deceased’s estate. However, a maximum of only four executors can apply jointly and sort everything out together.

11. What if one or more of the executors does not wish to apply?

It is not necessary for all the executors to make the application but it must be stated on the application form why the other executor or executors have not been included in the application, for example they may have renounced their right to probate, wish to have power reserved to them (see Question 14 for meaning) or they may have died.

Supporting evidence of why an executor is not included in the application must also be submitted as part of the application, for example renunciation or a death certificate.

12. What does ‘renounce probate’ mean?

People often find, particularly after the death of a friend or relative, that they have been appointed an executor of his or her will. They may have been unaware of the appointment and may not wish to take on the responsibility. However, even if they were asked in advance whether they were prepared to act as an executor and agreed to do so, they still have an opportunity to change their minds. A renunciation will, in appropriate circumstances, enable the responsibility of executorship to be renounced, i.e. refused. The renunciation must be signed by the person renouncing probate and it must be witnessed by and signed by another person.

It should be clearly stated on the probate application form why the person is not party to the application and the renunciation will need to be submitted in support of the application. This proves to the Probate Office why the person who has renounced probate is not a party to the application.

If a person wishes to renounce Probate, or find out more about the legal implications of doing so, they should seek legal advice before agreeing to anything.

13. What if one of the Executors dies before the deceased person or before Probate is applied for?

The person or persons making the application must state clearly on the application form whether the executor died before the deceased or if the executor survived the deceased but died before Probate could be applied for. A Registry issued death certificate confirming the statement must be submitted as part of the application.

14. What does ‘Power Reserved’ mean?

‘Power reserved’ is where a named executor in a will declines to act as such, but reserves the right to apply for probate at a later date. If an Executor has had ‘power reserved’ the fact is indicated on the Grant of Probate.

Where an application is made with the request that power is to be reserved to an executor or executors, notice of the application must be given to the executor or executors to whom power is to be reserved and the oath shall state that such notice has been given.

15. What is meant by a ‘minority interest’?

A minority interest arises when any person under the age of 18 years has an interest in the estate of the deceased.

Generally where an application is made for Letters of Administration (which includes administration with the will annexed), and a minority interest exists, at least two persons or a trust corporation will be required to make the application.

16. Do I have to use the services of an advocate to make the application?

There is no requirement for an advocate to make the application, however if you are in any doubt about the need to make an application or how to make the application you should seek legal advice. Access to details of all firms, advocates and members of the Isle of Man Law Society can be found on the Isle of Man Law Society website.

Courts of Justice