Here is a question that trips up more candidates than it should. A man dies without a will. He leaves a wife, two adult children, a house held as beneficial joint tenants with his wife worth £480,000, a bank account of £190,000 in his sole name, and a life policy written in trust for his sister. Who gets what, and who applies to the Probate Registry?
Most people reach straight for the intestacy table. That is the second step, not the first. The examiner is testing whether you can identify which assets even form part of the succession estate before you start dividing anything up. Get that wrong and every subsequent figure collapses — and in a single best answer question, four of the five options will have been drafted precisely to catch you.
Wills and the Administration of Estates sits in FLK2 alongside Property Law and Practice, Land Law, Trusts, Solicitor Accounts and Criminal Law and Practice. A previous CELE SQE article dealt with will validity, failed gifts and inheritance tax. This one picks up where the will stops: what happens when there is no will, who takes authority over the estate, and what personal representatives must actually do once they have the grant.
Step One: Which Assets Pass Under the Succession Estate?
Before intestacy or a will bites, strip out everything that passes independently of the estate. This is a five-second exercise once you have drilled it.
- Beneficial joint tenancies — the deceased's share passes automatically by survivorship. It never enters the succession estate, though it does count for inheritance tax.
- Life policies written in trust — the proceeds belong to the trust beneficiaries, not the estate.
- Discretionary pension lump sums — paid at the scheme trustees' discretion, usually following a nomination.
- Donationes mortis causa — deathbed gifts made in contemplation of imminent death, conditional on death, with delivery of dominion over the subject matter.
- Statutory nominations — a narrow category, mainly certain friendly society and industrial society accounts.
In our opening scenario, the house share passes to the wife by survivorship and the policy passes to the sister. The succession estate is essentially the £190,000 sole account. That single distinction rewrites the whole answer.
Train yourself to draw two columns on your rough paper: "passes outside the estate" and "succession estate". Then a third for the IHT estate, which is wider than both. Three columns, thirty seconds, far fewer careless errors.
Intestacy Under the Administration of Estates Act 1925
Section 46 of the Administration of Estates Act 1925 sets the order of entitlement, as amended by the Inheritance and Trustees' Powers Act 2014. The structure examiners test most often is the spouse-plus-issue split.
Where the deceased leaves a surviving spouse or civil partner and issue, the spouse takes the personal chattels absolutely, a statutory legacy (a fixed sum, index-linked and revised periodically — check the figure in force for your sitting), and one half of the residue absolutely. The issue take the other half on the statutory trusts. Note the word absolutely: the old life interest for the spouse was abolished for deaths on or after 1 October 2014, and questions still try to lure candidates back to it.
Where there is a spouse but no issue, the spouse takes the entire estate. Parents and siblings get nothing. That surprises candidates, and it surprises clients even more — which is exactly why it makes a good MCQ.
Two survivorship points matter. A spouse must survive the deceased by 28 days to inherit on intestacy (s.46(2A)). Separately, s.184 of the Law of Property Act 1925 provides that where the order of deaths is uncertain, the younger is deemed to have survived the elder.
If there is no spouse, the order runs: issue; then parents; then brothers and sisters of the whole blood; half blood siblings; grandparents; uncles and aunts of the whole blood; uncles and aunts of the half blood; and finally the Crown as bona vacantia. Each class must be exhausted before the next takes, and all the classes below spouse take on the statutory trusts.
Section 47 statutory trusts do two things. Entitlement is contingent on reaching 18 or marrying or forming a civil partnership earlier, and the distribution is per stirpes — so a predeceased child's share passes down to that child's own children in equal shares. Adopted children are treated as children of the adopters. Stepchildren, absent adoption, take nothing. Cohabitants take nothing at all under the intestacy rules, however long the relationship. Their only route is a claim under the 1975 Act, which we come to below.
Grants of Representation: Which Grant, and Who Applies?
There are three grants to know, and the trigger for each is mechanical.
Grant of probate is issued where there is a valid will appointing an executor who is willing and able to act. Only executors take probate. Their authority derives from the will itself, so an executor can act from the date of death — the grant confirms rather than confers.
Letters of administration with will annexed apply where there is a valid will but no executor able or willing to act, perhaps because the appointed executor has predeceased, renounced or been passed over. The order of entitlement to apply is set out in rule 20 of the Non-Contentious Probate Rules 1987, beginning with any residuary beneficiary or trustee.
Simple letters of administration apply on a total intestacy, with entitlement governed by rule 22 — surviving spouse or civil partner first, then children, and so on broadly tracking the s.46 order. Administrators have no authority before the grant issues, which is why a question about a purported sale of estate land three weeks after death, before any grant, has a very obvious answer.
A few practical rules earn easy marks. Where a minority or life interest arises, at least two administrators are normally required. A maximum of four personal representatives may take a grant to the same estate. An executor who has intermeddled cannot then renounce. And any inheritance tax due on delivery of the account must generally be paid before the grant issues — a chicken-and-egg problem solved in practice by the direct payment scheme, or by electing to pay tax on qualifying land in ten annual instalments.
Duties, Debts and Distribution in the Administration Period
Section 25 of the Administration of Estates Act 1925 states the core duty: collect and get in the real and personal estate, administer it according to law, and produce an inventory and account when required. Personal representatives are fiduciaries. They must not profit, must avoid conflicts, and are subject to the statutory duty of care in the Trustee Act 2000 when exercising investment and delegation powers.
Solvent estates pay debts from assets in the statutory order set out in Part II of Schedule 1 — property undisposed of by the will first, then residue, and so on — subject to any contrary direction in the will. Insolvent estates follow the Administration of Insolvent Estates of Deceased Persons Order 1986, where secured creditors, funeral and administration expenses, preferential debts and ordinary debts fall into a fixed sequence. Do not mix the two regimes.
If assets are short after debts, legacies abate. Residue is exhausted first, then general legacies rateably, then demonstrative legacies once the designated fund fails, with specific legacies last. Remember that a specific gift can also adeem if the asset no longer exists at death, and that a gift to a beneficiary who predeceases will lapse — unless s.33 of the Wills Act 1837 saves it because the beneficiary was the testator's issue leaving issue of their own.
Three protective devices are worth memorising as a set. Advertising under s.27 of the Trustee Act 1925 in the London Gazette and a local newspaper, allowing at least two months, protects PRs against unknown claimants. A Benjamin order gives court authority to distribute on a stated assumption where a beneficiary cannot be traced. And s.61 of the Trustee Act 1925 allows the court to relieve a PR who acted honestly and reasonably. Insurance and indemnities are the pragmatic alternatives.
Inheritance Act Claims and the Six-Month Clock
The Inheritance (Provision for Family and Dependants) Act 1975 lets specified applicants — spouses and civil partners, former spouses who have not remarried, cohabitants of at least two years, children, persons treated as children of the family, and those maintained by the deceased — claim reasonable financial provision where the will or intestacy fails to make it.
Two standards apply. A surviving spouse or civil partner is judged by what is reasonable in all the circumstances, whether or not required for maintenance. Everyone else is limited to what is reasonable for their maintenance. The Supreme Court in Ilott v The Blue Cross [2017] UKSC 17 reaffirmed the weight given to testamentary freedom and the limits of the maintenance standard for adult children.
The deadline is six months from the date of the grant, extendable only with the court's permission. For PRs the practical consequence is simple: distributing before that window closes exposes them personally, so questions asking "what should the PR do next?" very often want you to identify the risk of early distribution.
What to Actually Do This Week
Build one A4 flowchart running from death to final estate accounts: assets outside the estate, succession estate, will or intestacy, correct grant, debts, legacies, protections, distribution, assent. Then take a stack of past practice questions and, for each one, name the step being tested before you look at the options. You will notice that most FLK2 succession questions live at only three or four of those nodes.
Second, write out the s.46 order from memory each morning for a week. It is pure recall and it is worth marks that require no reasoning at all. Third, learn the rule 20 and rule 22 hierarchies as short lists rather than prose. And keep a running note of any figures that change between sittings — statutory legacy, nil rate band thresholds — because those are the details candidates most often revise once and never refresh.
SQE1 gives you 180 single best answer questions per paper across five hours and twenty minutes. That is roughly 1 minute 46 seconds each. Structure, not encyclopaedic detail, is what gets you through.
How CELE SQE Can Help
We have been teaching SQE candidates since the very first sitting in 2021, and our FLK2 succession materials are built around exactly this kind of node-by-node structure. Our SQE1 courses cover all 13 subjects — Long-term £3,720, Mid-term £2,750, Short-term £1,750, with a single FLK option at half price and £150 off for early bookings or bookings within three months of the exam. If you would rather drill than watch lectures, the SQE1 Question Bank subscription is £575 per month, and the textbooks are £950 for the full set or £570 for a single FLK. Questions are welcome at [email protected], on WeChat SQE100, or at celebar.com — no pressure either way.
