Authority to manage the estate

Authority to manage the estate

Contents

Those appointed to manage the estate must apply to the Probate Registry or in Northern Ireland the Probate Office of the Chancery Court to obtain the necessary written authority to manage the estate. This is generally referred to as obtaining a grant. The Probate Registry will issue a document, called a grant of representation, which acts as proof of the person's authority to act. The type of document will differ depending on whether the persons are appointed by will or, where there is no will, by the court.

Introduction

The personal representatives (PRs) will be either the deceased's executors (if they have made a will) or intended administrators.

If the will is valid and contains an effective appointment of executors of whom one or more is willing and able to prove the deceased's will, they will be given the necessary authority to proceed with the management and administration of the estate. It is called a grant of probate and will be issued to nominated executors.

If there is a valid will, but there are no persons willing or able to act as executors, then the next persons entitled to act are called 'administrators' who are appointed according to prescribed rules. They will apply for authority to act and will receive a grant of letters of administration with will annexed.

If the deceased left no will, or no valid will, the estate will be administered in accordance with the prescribed rules and administrators will be appointed in terms of those rules. They will apply for a grant of letters of administration.

In order to obtain a grant, only one executor need apply. This is so even if the estate contains land that may be sold during the administration because a receipt for the proceeds of sale from one executor is sufficient for the purchase. This is in contrast to the position of a trustee. In the case of a trustee, a good receipt for the proceeds of sale of land must be given by at least two trustees (or a trust corporation, for example, a bank).

In the case of administrators (with or without the will) it will often be sufficient for one to act in the administration of the estate. However, where the will or intestacy creates a life interest or a child interest, two administrators are normally required.

Preliminary steps

Details of assets and liabilities

A PR must first obtain details of the deceased's property and of any debts outstanding at the date of death. This can be achieved by obtaining the building society passbooks, share certificates and details of bank accounts. These documents will give some indication of the value of the assets but are unlikely to produce precise values. More accurate valuations can be obtained by writing to the various institutions holding the deceased's assets and producing the death certificate as evidence of the death where required.

The PRs should also ask the bank whether it holds in safe custody any share certificates or other property owned by the deceased. The bank will require sight of the death certificate. Once these details have been gathered, the PRs will then have some idea of the size of the estate. This is extremely important, particularly where the estate will be subject to Inheritance Tax.

Details of the beneficiaries

The identity of the beneficiaries should be obtained at an early stage. The nature of their entitlement should also be identified, for example, whether they are receiving a specific gift or part of the residue (what is left over). If they are specific legatees, it is important to establish whether the property given by those specific gifts is part of the estate. If they are not, the gift will fail, except in very unusual cases.

If the deceased dies intestate (without having made a valid will - see 'Dying without a will'), it is necessary to establish which members of the family have survived so that the basis of distribution of the estate can be established in accordance with the intestacy rules. The law on this varies throughout the UK and clarification should be sought from a solicitor within the relevant jurisdiction.

Missing or unknown beneficiaries

PRs (executors or administrators) are responsible for the administration of the deceased's estate. This function must be performed correctly. Failure by a PR to carry out their duties can give rise to personal liability. PRs may be faced with a problem that persons entitled under the will or intestacy rules have disappeared or are unknown to them. In addition the PRs may not be sure that they have identified all the deceased's debts and creditors. Steps can be taken to protect the PRs against personal liability and advertising in accordance with the relevant trustee legislation for missing beneficiaries, creditors or other potential claimants may be prudent.

The probate papers

The appropriate oath and tax forms must be prepared in readiness for the application for the grant of representation. The PRs must swear the oath for executors or administrators before the application for the grant can proceed.

All assets must be valued in accordance with the Inheritance Tax valuation principles. The values and amounts of any debts and liabilities due at death will be inserted into the appropriate tax form.

The amount of Inheritance Tax payable before the application for the grant is made can be calculated. Arrangements will have to be made for loan facilities with the bank so that this amount can be borrowed since, generally, the deceased's assets will not be available to the PRs until the grant has been obtained.

Procedure

Around 70% of applications are made through a solicitor, notary or barrister. The charges made by solicitors, notaries or barristers to their clients vary according to a number of factors (including the complexity of the case), so it is not possible to give an indication of typical, or average, costs.

The Probate Service is part of Her Majesty's Courts and Tribunals Service (HMCTS). It administers the system of probate, which gives people the legal right to handle the estate (for example, money, possessions and property) of a deceased person.

In the case of the majority of applications made through solicitors, notaries or barristers, the main stages involved are:

  • The solicitor, notary or barrister meets the client and takes necessary details or the client supplies information
  • The solicitor, etc. writes to the various asset holding institutions and valuers to obtain values for the estate
  • The solicitor, notary or barrister prepares the papers for the client to swear the oath (see below)
  • The client swears the oath in front of an independent solicitor or commissioner for oaths
  • The solicitor then sends the tax forms (IHT400 and supporting documents) to HMRC with a cheque in settlement of the tax in taxable cases
  • The solicitor, notary or barrister sends the papers to a Probate Registry, or Northern Irish Probate Office, for processing together with the original will, fee and form IHT205 in a case where there is no IHT to pay)
  • Staff at the Probate Registry/Office examine the papers, and a grant of representation is issued and sent to the solicitor, notary or barrister once the Registry is satisfied as to the validity of the application

If the estate is due to pay Inheritance Tax, the IHT400 and all accompanying schedules together with tax due must be lodged with HMRC prior to any court application.

Just under one third of applications are made by applicants acting in person. The fee payable to the Probate Service when making a personal application is £215, but where the estate is £5,000 or less, no charge is made. In Northern Ireland the process and fee may be confirmed upon request with the Probate Office.

There are five main stages involved in every personal application:

  • The applicant can obtain information, guidance and forms from the probate and inheritance tax helpline
  • The applicant completes the forms and sends them to the Probate Registry together with the original will if any, an official copy of the death certificate and the fee.
  • Staff at the Probate Registry examine the application and prepare the necessary papers
  • The applicant attends an appointment at the Probate Registry or Probate Office for interview, and to swear the oath
  • A grant of representation is issued and posted to the applicant once the Probate Registry is satisfied as to the validity of the application

Personal applications

You will need to follow the process explained here:

  • You will need to complete Probate Application form PA1.

On the application form, you should specify which Probate Registry or Probate Office you would like to attend to swear the oath – you can choose the one which is most convenient for you, and any other executors. Or, you can choose to swear the oath at a local solicitors' office.

  • When you apply for the grant, you will need to complete a tax form whether or not Inheritance Tax is owed. You should use form IHT205 if no Inheritance Tax is owed. If form IHT205 is not applicable to you, contact HMRC for form IHT400.

For help completing the forms, you can contact the Probate and Inheritance Tax Helpline. You can either work out the Inheritance Tax for yourself or you can ask HMRC to do it for you.

  • Organisations like banks and building societies need to see sealed copies of the grant before they can release assets to you. They won't accept unsealed photocopies.

So if you want to deal with the estate quickly, you may want to order enough sealed copies of the grant to send to all the organisations you are dealing with at the same time.

  • If there are any assets held outside England and Wales or Northern Ireland, you may require a special copy of the grant – usually referred to as a sealed and certified copy.
  • If any person or organisation holding assets insists on seeing an official copy of the grant, you can write to the probate registry or office which issued the grant to order more sealed copies. However, these will cost more than those ordered at the time of application (see the fee list), so it's important to decide before you apply for the grant how many copies you will need.

You will need to enclose:

  • An official copy (not a photocopy) of the death certificate issued by the Registrar of Births Deaths and Marriages or a coroner's certificate.
  • If applicable, the original will and any codicils (or any document in which the deceased person expresses any wishes about the distribution of his or her estate). Keep a copy of any will or codicil you send. Do not attach anything to the will by staple, pin etc. or remove any fastenings from the will.
  • Any other documents specifically requested by the Probate Service, such as a decree absolute.
  • A cheque made payable to 'HMCTS' for the application fee, together with the cost of the number of official sealed grants you require.

You should send your application to the probate registry or office of your choice.

They will contact you if, after examining your application, they have any queries. If they do contact you, and you are unable to provide them with the further information and/or documentation they require, it is possible an order may be made that your application is not suitable to be dealt with as a personal application. If this is the case, you will need to instruct a solicitor or probate practitioner to make the application on your behalf.

If your application is complicated, the Probate Service may require you to sign additional documents or contact other people – for example, a witness to a will – so that they can interview them or obtain their signatures on documents to help with your application.

If there are no problems, the Probate Service will send you a letter (usually 10 - 14 days after they receive your application) acknowledging receipt of your application and providing you with a copy of the oath you will need to swear.

If you are applying for a grant with someone else and they cannot come with you, the Probate Service can arrange for them to swear the oath separately at a different location if necessary. This will, however, delay the time it takes to issue your grant.

If you have opted to swear the oath at a local solicitor you should contact that solicitor to make appropriate arrangements. The Probate Service will send further instructions on the process when they send you the oath.

If you have opted to swear the oath at a probate venue, the Probate Service will send the oath to you and then you can call to arrange a date convenient for you.

If you have sworn the oath at a local solicitor, you should return it to the Probate Service. Once they have the oath, provided they have all the necessary documentation, they will send you the original grant and copies of the grant (if you have requested them) and return the original death certificate to you, usually within seven working days. You can arrange to collect the documents in person if you want. If you wish to do this, confirm this in a covering letter when returning the sworn oath.

The Probate Service retains the original will, as it becomes a public record.

When the grant has been issued, you will receive information concerning your role as the executor or administrator. You will then have the legal right to ask any person or organisation holding the deceased person's money or property to give you access to these assets. These assets can then be released, sold or transferred as set out in the deceased person's will or as required by the intestacy rules.

All grants of representation are public records.

The responsibility of the Probate Service ends when the grant is issued, and they cannot advise you on how to administer the estate. If you have any questions about this, you should seek legal advice.

Applications by the executor or administrator

Where the executor or the administrator in the case makes an application where there is a will, it is important to check that the will is valid in all respects. Legal advice should be sought if there is any doubt as to whether:

  • The will is the last will of the testator.
  • The will has not been validly cancelled.
  • The will has been executed in accordance with the provisions of the Wills Act 1837.
  • It contains an attestation clause that indicates that the will was executed in accordance with the requirements of the Wills Act 1837.

Where the registrar is satisfied with all of the documentation lodged by the executor or administrator, they will issue the original grant signed and sealed with the court seal. However, there may be circumstances where the registrar requires further evidence and this may have to be supplied by way of affidavit.

Usually this occurs where there is no attestation clause, or the clause is defective or there is doubt as to whether the will has been properly executed. In such circumstances, the registrar will require evidence by affidavit of due execution. One or both of the witnesses to the will can give this evidence.

If there is doubt as to the mental capacity of the testator, an affidavit from a doctor may be necessary in order to satisfy the registrar that the testator had the necessary mental capacity.

Where a will has been lost, it is presumed that the testator destroyed the will with the intention of revoking it.

However, if the will has been lost or accidentally destroyed, probate may be obtained with a copy of the will. A copy of the will may have been kept in a solicitor's file. However, in order to obtain probate in these circumstances, an application would have to be made to the registrar. The application would be supported by affidavit evidence from the applicant for the grant of probate setting out clearly the circumstances surrounding the existence of the will following death of the testator (someone who makes a will) or facts which rebut the presumption that the will was revoked by destruction and the accuracy of the reconstruction or copy as appropriate. The registrar may also require evidence of due execution of the original will by way of affidavit.

Tax forms

One of the first steps towards obtaining the grant of representation is preparation of the appropriate tax form and calculation of any Inheritance Tax (IHT) payable.

Purpose of the tax forms

The tax form is an inventory of the assets to which the deceased was beneficially entitled, and of their liabilities. It is also a form for claiming reliefs and exemptions and calculating the IHT payable. It should be delivered within twelve months after the death of the testator (someone who makes a will). Penalties may be levied if the form is lodged after that date. Usually the PRs will aim to deliver the account within six months to avoid interest being charged. Until the account is submitted no grant of representation can be issued.

IHT is payable on all property to which the deceased was entitled immediately before death. Certain types of property qualify for tax relief, for example, a business or agricultural property. In respect of other property an exemption may apply. Two of the most important exemptions being benefits left to the surviving spouse/civil partner or to a charity. In both cases, no IHT is payable.

The tax forms divide the deceased's assets into property with, and without the instalment option. IHT payable on property without the right to pay by instalments must be paid within six months of the end of the month in which the death occurred.

HMRC allows payment on land, businesses and certain shares to be paid by way of ten equal yearly instalments. If the option is exercised, only the first instalment of one tenth must be paid within six months following death. In an estate where it is not possible to deliver the tax form within that period, then all tax on non-instalment option property plus the appropriate number of instalments on property with the option and interest must be paid on delivery of the account. Interest runs on all tax not paid on the due date.

Valuations

Assets and liabilities are valued in accordance with specific principles. For example, quoted shares are valued at a quarter up on the lower of the two prices quoted on the stock exchange for the date of death (i.e. the lower price plus one quarter of the difference between the lower price and the higher price). Unquoted shares are usually valued initially by the company's accountants before the values are ultimately negotiated with the share valuation division of HMRC.

Liquid assets such as bank accounts are valued as the amounts standing to the credit of the deceased at the date of death together with interest accrued but not credited. Life policies are shown as their maturity value.

Land is valued at its open market value as at the date of death. This is usually ascertained from a Chartered Surveyor employed by the executors but, before administration of the estate can be completed, the valuation must be agreed with the local District Valuer after negotiation.

Special valuation rules apply where the deceased was a co-owner rather than a sole owner of the land. The rule applies equally to land held by the deceased with others as tenants in common or beneficial joint tenants.

Where there is joint ownership of land (other than with a spouse or civil partner), the market value of the land at the date of death may be discounted to reflect the virtual impossibility of selling a part interest in the property. A discount of 10% to 15% is normally considered reasonable. This special valuation rule does not apply to assets other than land.

Funding the IHT

Where there is IHT to pay on delivery of the tax form, the PRs must arrange for the appropriate amount of money to be sent to HMRC with the form. Until this tax is paid, the probate registrar will not grant authority for the administration of the estate and therefore the executors or administrators will not be in a position to start to collect in the estate.

However, the estate may not have sufficient cash assets to cover the IHT payable. One often finds that the testator has invested in land, shares and other investments leaving very little in cash. There are a number of options available to the PRs:

  • If there is sufficient cash in a building society account or there is a policy of insurance on the deceased's life, the institution holding the funds may be willing to release funds to pay the IHT.
  • In terms of the Administration of Estates (Small Payments) Act 1965 the PRs may be able to obtain one particular asset where the maximum value is not more than £5,000.
  • If the beneficiaries are wealthy, they may be prepared to fund the IHT from their own resources, as they will ultimately be repaid from the deceased's estate once the grant issues. Alternatively, beneficiaries may have already received assets as a result of the death, which they are prepared to use to pay the tax. These assets include money from a jointly held bank account or the proceeds of a life policy that was vested in the beneficiary.
  • Where there is insufficient cash available, banks will be prepared to enter into a loan for payment of the IHT. However, they will require undertakings from the PRs. Bank borrowing is expensive, as the bank will charge an arrangement fee and interest on the amount borrowed. Money borrowed should be repaid at the earliest opportunity so as to honour any undertaking and to stop interest running. Income tax relief is available on interest paid on a separate loan account.
  • Payment of tax may also be made from National Savings Bank accounts or from the proceeds of National Savings Certificates, Deposit or Income Bonds, Premium Bonds and similar holdings. However, this could cause delays of up to four weeks before the monies are available for payment of tax.

Requirement for a tax return

Depending on the nature of the estate, different IHT forms are available. The most commonly used forms are the IHT Form 205 (where no tax is payable) and IHT Form 400 (where tax is payable).

Necessity for a grant

A grant enables the PRs to prove their authority to deal with the deceased's property that passed under the will or the intestacy rules (see 'Dying without a will'). However, it should not be presumed that it is always necessary to obtain a grant of representation. The ability to cash the assets without the production of a grant is particularly useful where the deceased's family needs funds immediately for payment of Inheritance Tax or other purposes. In most cases, however, if IHT is due on an estate, it will be too large to wind up without obtaining a grant of representation.

Assets which may pass without grant

Where the assets in the estate are of such a type that they may be cashed without the production of a grant, or the assets do not pass through the hands of the PRs or the assets to be cashed do not form part of the deceased's estate, a grant may not be required.

Payments can be made to persons appearing to be beneficially entitled to the assets without formal proof of title. This facility is restricted in that it is not available if the value of the asset exceeds a certain sum which varies between institutions but is generally more than £5,000. The payments are usually made at the discretion of the institutions concerned. It is not possible for the executors to insist that payments should be made.

Subject to these points, payments can be made in respect of, for example money in National Savings Bank accounts, National Savings Certificates, Premium Bonds, and money in Building Societies and friendly societies.

Recoverable property such as furniture, clothing, jewellery and cars can normally be sold without the PRs having to prove to the buyer that they are entitled to sell such items. Occasionally, a grant will be required to prove entitlement, for example, if the deceased's jewellery is deposited at a bank.

Normally the PRs do not require a grant before taking custody of any cash funds in the deceased's possession as opposed to funds deposited in a bank or other account.

Assets not passing through the PR's hands

On death, any interest in property held by the deceased as a joint tenant in equity with another (whether it is an interest in land or other property, for example, a bank account) passes by survivorship to the surviving joint tenant. As it does not pass via the PRs, any grant is irrelevant.

The survivor has access to the property and can prove title to the whole of it merely by producing the deceased's death certificate. Since it is common for married couples or civil partners to own property jointly, there are many occasions where a grant is not required for this reason. The property passes to the surviving spouse/civil partner independent of any grant.

Property not forming part of the estate

Where the deceased insures their own life so that the policy and its proceeds are held in trust for another, no grant is required. On the death of the deceased the policy money is payable to the trustees of the policy on production of the death certificate and the proceeds do not form part of the deceased's estate.

As the deceased had no beneficial interest in the policy or its proceeds, no Inheritance Tax will be payable on the proceeds. Such a policy is particularly advantageous as the proceeds make tax-free provision for dependants of the deceased and can be collected immediately following death.

If the deceased has entered into a discretionary scheme such as a pension fund, then any payments made by the pension fund trustees are made to the beneficiaries on production of the death certificate. Once again, a grant is not required since the pension benefits do not form part of the deceased's estate. It is another method of making tax-free provision for the dependants, and such provision can be collected in immediately following the death.

Oaths

Every application for a grant of representation must be supported by the correct oath.

Although the oath may differ in detail, the common purpose is to give the probate registry details of the deceased, the basis of the applicant's claim to take the grant, an undertaking that the applicant will administer the estate correctly and in the case of oaths for executors and administrators (with will annexed), to identify and exhibit the will and any codicils (documents that alter existing wills).

The procedure

Unless the correct oath is accurately completed and submitted to the probate registry or office, no grant of representation will be issued.

Before the oath is submitted to the probate registry, the PRs must swear the truth of its contents. Where the application is being made through a solicitor, notary or barrister, this must be done before a commissioner for oaths or an independent solicitor holding a current practising certificate. In the case of personal applications, the oath may be sworn at a probate venue or before a local commissioner for oaths/solicitor.

Oath for executors

The oath for executors will lead to a grant of probate which is the written authority given to those appointed in the will who are willing and able to assist in the management and administration of the estate. The executors are solely entitled to a grant of probate where the will has appointed them. One executor may obtain a grant and act alone with any other executors choosing to either reserve their rights to probate or renounce their entitlement to probate.

A person appointed as an executor by the will, but who, at the testator's (someone who makes a will) death, is suffering from mental incapacity may not act as an executor or apply for a grant.

  • Child executors

A child under the age of 18 can be named as an executor. However, at the date of the testator's death, a child will not be in a position to act as the executor or to apply for a grant. Probate will be granted to the adult executors. The rights of a child to take up a position later can be reserved. If the administration of the estate has not been completed by the time the minor reaches 18 years they can then apply for authority to act as an executor.

Where a child is the only executor appointed by the will or where the adult executors are not able or willing to act, the testator's estate cannot be left unadministered until the executor reaches 18. The probate registry will most likely authorise the parent or guardian to act in the meantime. When the child reaches 18, they may then apply for authority to act in the estate.

  • Ex-spouse/civil partner executors

If the testator appointed their spouse or civil partner as an executor and the marriage/civil partnership subsequently ended in divorce/dissolution, the appointment will fail unless the testator has shown a contrary intention in the will. If the spouse/civil partner was one of several executors, the others may apply for the grant of probate to the exclusion of the spouse/civil partner. If the spouse/civil partner was the sole executor, application should be made for a grant of letters of administration with will annexed. In either case, the oath should state the fact and the date of the divorce.

  • Giving up the right

Any person appointed as an executor may give up their right to take the grant provided that they have not got involved in the administration of the estate already. This is called intermeddling. This occurs when the executor has performed some task that an executor might do, for example, notifying the deceased's bank of the death. Acts of common humanity, such as arranging the funeral do not amount to intermeddling. Once an executor has intermeddled, they must take the grant. Where a person appointed in the will or by intestacy decides that they do not wish to act, they must notify the probate registry in writing. The person giving up their right must sign the notification and the signature must be witnessed.

Oath for administrators

This oath is required if the deceased has died totally intestate (without having left a valid will, see 'Dying without a will'). The persons entitled to the grant in England & Wales, save for some exceptions to the rule, and their order of priority are the following:

  • Surviving spouse or civil partner
  • The children of the deceased followed by the grandchildren
  • The father and mother of the deceased
  • Brothers and sisters followed by nieces and nephews
  • Half brothers and sisters followed by their children
  • Grandparents
  • Uncles and aunts followed by their children and thereafter half uncles and aunts followed by their children

In Northern Ireland the persons entitled to the grant, save for some exceptions to the rule, and their order of priority for deaths occurring on or after 1 January 1956 are as follows:

  • The surviving spouse
  • The children of the deceased or the children of any child who has died during the lifetime of the deceased
  • The father or mother of the deceased
  • Brothers or sisters of the deceased (whether of the whole or half-blood) or the children of any deceased brother or sister who has died during the lifetime of the deceased
  • Failing any class as above then grandparents
  • Then uncles and aunts or their issue
  • Great grandparents
  • Grand-uncles and grand-aunts (whether of the whole or half-blood)
  • Great-great grandparents
  • Etc.

Should there be no person available or entitled to a grant, the Treasury Solicitor shall be entitled to a grant and will act on behalf of the Crown.

Finally, if all persons entitled to a grant under the above provisions of this rule have been cleared off, a grant may be made to a creditor of the deceased.

Oath for administrators with will annexed

The oath in support of this application differs where there is a valid will, but there is no executor willing and able to apply for a grant of probate. This may occur where the will fails to appoint the executor, the appointment was of the testator's spouse/civil partner and has failed as a result of the testator's divorce, the executor has died before the testator, the executor has died after the testator but before taking the grant or the executor has given up their right to the appointment.

In these circumstances, the order of priority of the persons entitled to grants of letters of administration with will annexed is governed by specific rules. The probate registrar will look to certain categories of beneficiaries, their personal representatives, and even creditors of the deceased.

When applying for a grant, the person must explain why there is no applicant ranking higher than them. This is called clearing off. A person in a lower ranked category may only apply if there is nobody in a higher category willing and able to take the grant.

A child cannot act as an administrator. Their parent or guardian may apply for the grant for their use and benefit on their behalf. The grant is limited until the child reaches the age of 18.

If there are several people entitled to act as administrators the grant can only be given to a maximum of four persons. No rights can be reserved to anyone.

If there is a valid will, but no executor, and the will does not dispose of all the estate, the appropriate grant is still letters of administration with will annexed. The property not disposed of by the will is distributed according to the intestacy rules (see 'Dying without a will').

Where the will or intestacy rules create a life interest or pass property to a child the court normally requires a minimum of two administrators to apply for the grant.

In the same way as an executor can give up their right to a grant of probate, an administrator is also entitled to a give up their right to a grant of letters of administration with will annexed. An administrator does not lose that right by intermeddling.

Post death changes

A person is entitled either to reject a gift outright (disclaimer) or choose another beneficiary to receive the gift (variation) (see 'Varying a will or the distribution of an estate after death'). In both cases there will be a change to the beneficiary and this may also lead to a change in taxation.

If such action is to be taken it must be taken within two years of the death. However, it is advisable to consider the possibility of a variation or disclaimer at a much earlier stage, choosing to do so when the opportunity most naturally arises. If a variation or disclaimer is made before application for the grant, it is possible to pay Inheritance Tax (IHT) (if the estate is liable) on the basis of the variation or disclaimer being incorporated into the testator's (someone who makes a will) will or the intestacy rules (see 'Dying without a will').

Where the beneficiary elects to make changes before an application for a grant is made, the probate registry/office must be notified of the changes when the application for a grant is made. This may result in paying less IHT to obtain the grant particularly where the new beneficiary is the surviving spouse/civil partner or a charity.