AMA as a wills and probate solicitor

[Fi16]

AMA

Hi all just to say I’ve answered as many queries as I can :) I will try and get through everything. If I haven’t responded yet it’s because the query is either a little bit more complicated or it’s outside of my knowledge. I don’t really deal with contentious issues I.e stealing from estates etc as that would normally be passed to another team. But will try and answer all in time :)

Roughly how long do you take to reply to a client’s email? A couple of basic questions in it, and a request for an outline of what happens next?

https://probatesearch.service.gov.uk/#wills

Thank you.

Honestly it would depend how busy the firm is. I understand delays frustrate clients so I always try to respond asap. I would just keep chasing. I know it can be frustrating and I get the feeling some firms / solicitors are just quicker than others and depends on staffing levels. X

Thanks @Fi16

i think because they deal with this stuff all the time they don’t realise how stressful it is for the lay person!

What advice would you give to a married couple If you know your husband/wife is going to die shortly what can be done to simply the process re probate. If all financial assets are in joint names is probate still required.

This surprises me - we recently applied for letters of administration and it was such a quick and easy process it made me seriously reconsider if I would even want a will if I was happy with the intestacy rules. We had letters granted within 48 hours of submitting the forms - I was genuinely astonished. There was no IHT to pay.

My mum wants to leave me her house in her will.

She has a partner (not married) who has lived with her for 20 years. He has shared bills but not contributed to the mortgage.

My mum said that if she dies first, i am not to ‘kick him out straight away’ while he finds somewhere else.

My question is, what risks are there for me in this scenario? For example, do i risk becoming an unwilling landlord to her partner? What happens if he refuses to move out or takes a long time? Does he have any legal right to stay there as he has lived there for such a long time?

I want to talk to my mum about this but want to get the facts straight. My main concern is financial, where i end up paying towards house repairs etc longer that i would intend to and it would become a money pit before i can sell it. I live a few hours away and I have my own mortgage and 2 young kids.

My feeling is that for a while they only did anything when I prompted them by asking for an update.

Thank you so much for taking the time to reply. This is incredible helpful. I think we need to look at marriage!

Thank you so much for taking the time and trouble for such a helpful response x

It’s taken two months to be appointed executor here (same but Scottish equivalent)

Like drawing teeth. They still haven’t told me what IHT threshold applies (death of second of married couple) nor about getting expenses from the estate: not tricky questions for supposed experts

No will shown there. I will continue to check for a will or grant of probate.

Each bank has different thresholds regarding what they will and won’t release without probate. On your mother’s death you will need probate again to sell the property even if there are little savings. There shouldn’t have been any tax due on your father’s death if his trust created a life interest for your mum as transfers between spouses are exempt from IHT in any event. This is presuming it is a life interest trust and not a discretionary trust. Hopefully this helps but let me know if you need further clarification x

Thanks so much for this! It is so kind of you spending your free time answering lots if legal questions from strangers on the internet :)

I think if you say that probate is needed anyway as there will be the house to sell, then it can’t be avoided, so that has answered my question - thank you. I hadn’t realised that probate was necessary if there was a house as part of the estate. Thanks again, and I hope you have a lovely Sunday!

As the estate involves a trust you will have to complete form IHT400 and its relevant sub sections too, even if no tax to pay, a real cure for insomnia that one!

If all joint then probate is not required. However what I would say is that if there is a concern re the survivor’s estate being used up for care fees for example or any other risk to the estate to look at the planning carefully if they are able to because in that case a different type of Will may be appropriate . That type of Will may result in probate but the cost associated with that compared to the loss on care fees would be minimal (depending on the complexity of the estate and assets of course). If care fees / other risks of everything passing to surviving spouse absolutely then joint names would avoid probate x

Thank you, @DeftWasp . Does that form need filling in when the trust is being wound up? Or does it need filling in now? We are getting a trust account that pays no interest, so we don’t need to do tax returns for it (suggested by the solicitor)…

Can I ask if there is a will already or would your parents be relying on intestacy rules ? X

So in this case your mum could do a straight forward will leaving the house to you which means her partner does not have a right to reside there and you would dictate when he should leave. If he refused to leave that would need further advice. The better option is for your mam to make a discretionary trust will which are good for unmarried couples. It would state the wish that he could reside there for x amount of time and that he should be responsible for the upkeep of the property. The trustees would then have discretion over his occupation. The trustees would need to manage this so the appointment of appropriate trustees would be important and a relevant consideration if there is risk for dispute. Another point though is that if he has been reliant on that property and he is not satisfied with what he has been left from the estate he could bring a 1975 claim against your mum’s estate if he was so minded. I could not say if he would be successful in respect of this. There’s a few options here so I would suggest your mum gets further advice on this and raises her concerns with a solicitor who could guide her further x

Do you think the whole probate/executor process is flawed and to open to fraud/misuse?

we are in a contentious probate at the minute as the executor just did not. Told beneficiaries “estate settled and no assets”, and did not apply for probate. that’s it. However we know there was money and know that the executor removed it before telling the bank of death. However we do not have bank statements, so the police can’t investigate, the bank say the executor has to report any misuse of accounts, and there’s no probate so can’t use that route.

chances are it will cost £££ that my elderly aunt does not have.

it has made me realise that executors can get away with this as only they have access to the evidence, it’s a position of trust so the assumption is they act correctly unless you have hard evidence, so it’s very difficult to get an investigation started.

makes me think there should be some form of banking protocol or probate check, or it should be law that every account goes through probate. Banks should not be releasing sums over 1k either, an executor being able to remove 30-50k with no probate is just asking for theft.

It has to be submitted with the probate application, with it you submit form IHT418 for assets held in trust.

All valuations are taken at the date of death, if there is property get it valued by an RICS surveyor, the valuation should be to a willing buyer on that day, so will be less than an estate agents valuation because it takes account of reductions, delays, costs etc. that happen in the routine selling process.

Thanks for this, @DeftWasp

No, he never married. Thank you for answering. It’s just the brass neck of the guy that annoys me. I’d rather it went to charity than someone who was a shit friend to him.