Probate guidance

[doradoo]

Am just trying to clarify some rules and requirements around probate to help DH who’s been appointed joint executor in a relatives will. Said relative has recently died.

I have a few questions and wondered if any legal bods could help out. DH and his DB have consulted a solicitor and are in the process of filing the probate forms but I have some separate questions around the process and what people can and can’t do.

Am I right in thinking that until probate has been awarded, effectively all the property of the deceased still belongs to the deceased and no one can sell, distribute etc this? And that it is only post probate being awarded that the executors are legally allowed to do the above?

Can the house be put on the market prior to probate being awarded?

Can people take items from the house prior to probate being awarded?

What are the potential problems for the executors if the process isn’t followed properly and would these be any different depending on profession of the executors I.e. is there a higher level of expectation if the executors were part of a professional body etc?

Thanks in advance, and if anyone can point me to some further reading that would be really helpful.

This is helpful

www.co-oplegalservices.co.uk/probate-solicitors/what-is-probate/

www.which.co.uk/money/wills-and-probate/probate/guides/what-is-probate

We did probate for my MIL. I don't recall it being complicated. I know that we simply consulted her family solicitor and said we would do probate ourselves which included completing all the paperwork for Inheritance Tax.

My DH had POA for many years and put the house on the market soon after her death. I don't honestly know if probate had been granted by then but as the legal owner (jointly with his brother) of her estate (as shown in her will) it was entirely possible to put the house up for sale from the date of her death.

Your circs sound different though because it sounds as if your DH is not the son of the relative and therefore may not be named in the will as the beneficiary of her estate.

In terms of taking items from the house, you need to consider inheritance tax because everything has to be valued for that . if anything for example was sold - whether by Ebay, house clearance or auction, that has to be accounted for with IHT.

Thanks for your quick reply. Will take a look at the links.

DH is a beneficiary as is his DB, although neither are next of kin (who is not a beneficiary) and I don’t know if that complicates things. We are also overseas which adds another level of complexity!

I am not legal, but can share what happened when a relative of mine died in late 90s

Relative had a will and my mother was executor. As estate was over 23K it had to go through Probate. This seemed to be a check that the estate did not owe money to the Crown (UK Government). Once the Probate was complete the estate was then distributed in accordance with the instructions in the will. So I would say that nothing should be sold or given away before the Probate is complete, but remember I am describing what happened on late 90s. Laws and procedures may have changed since then?

If the estate is large in value there may be issues with Inheritance Tax. So you may wish to seek advice of an Accountant/Tax Advisor. Usually wills are written in such a way that such costs are paid from the estate before distribution to the beneficiaries.

Good luck

I know it was fairly easy for us. DH went to the local sols (not where his mother had lived) to swear on the oath to grant probate.

I know we saved about £2K in legal fees by doing it ourselves. We also knew she was not over the limit to pay IHT. However, you still have to prove this and list all assets.

The hardest part was where we had to search her family tree because you have to account for any living relatives anywhere who could contest the Will or be a beneficiary ( ie siblings, grandchildren, extended family with whom contact may have been lost) and prove you have made attempts to contact them. This was hard for us as she was one of 9!!!

One thing we did which may not apply to you was to keep records of expenses involved in administering probate and the sale of the house, assets etc- ie hotels and travel - to her part of the UK to claim it back as part of the inheritance.

The sols who did the conveyancing took their fee out of her estate before it was wound up and shared between beneficiaries.

Probate is needed so that the executors can dispose of any land, property (i.e. houses or similar) and shares that are owned by the deceased. It is not needed to deal with other types of property - bank accounts, cars, the contents of the house, etc.

The executors don't have to wait for probate before putting the house on the market but they cannot complete a sale until probate has been granted.

Regarding taking items from the house, it depends what is being taken. There would be no problem if, for example, someone wanted to take some family photos or other items with no significant value provided the items being taken haven't been specifically left to someone else in the will.

You say the next of kin is not a beneficiary. It the next of kin was the deceased's spouse, civil partner, child or a dependant of the deceased they may be able to make a claim against the estate. It may therefore be necessary to wait until 6 months after probate is granted before distributing the estate - that is the time limit for them to make a claim.

Yes it's vital that nothing is finalised with the assets if there are family members (next of kin) who are not beneficiaries of the will.
They may decide to contest it. As part of probate you have to contact all living relatives who may have a claim or want to pursue this.

Yes it's vital that nothing is finalised with the assets if there are family members (next of kin) who are not beneficiaries of the will.
They may decide to contest it. As part of probate you have to contact all living relatives who may have a claim or want to pursue this.

This is why we were advised to put a cursory amount in a will to show we had considered them

Thank you for all of this.

Next of kin is the elder sibling of the deceased and parent of the executors and beneficiaries and knows (and I think helped draw up) the contents of the will. I’ll make sure we have official confirmation of that though

The deceased had no spouse or children, and only one sibling.

You need to clarify this, but the sibling who is still alive- do they have children? Does the deceased have cousins? Do check because anyone who is still alive has to be involved. It was slightly easier for us with my MIL because she was one of the youngest of 9 so most of her siblings had predeceased her and the will was straightforward.

Constantly - Does the deceased have cousins? Do check because anyone who is still alive has to be involved.

Why does anyone who is alive have to be involved? I am actually shocked that anyone is banding such nonsense around. A will is a statement of the deceased's wishes. Yes, it can be contested, but not by just anyone, such as cousins!!! The only way it could be realistically contested would be if there was a dependant who had been left out eg a partner or child. I very much doubt that the deceased's sibling or cousins or anyone else non-dependant could challenge the will - I am not sure where Constantly has got the idea that any living relatives have to be involved?

Op - when we did mums will 2 years ago, we didn't involve a solicitor, I did bulk of work with DB also an executor. We had house on market and sold before probate, but obviously we needed probate before completion.

The estate was under IHT limit, with little of any value, thus we started emptying it whilst applying for probate, with just a small sum for any items we might sell put into the probate form. Most items went to charity shop or kept as keepsakes by us or other family.

Probate form does ask for the number of any siblings, but you don't need to do any sort of detailed family tree. We certainly didn't list any of my mums nieces, nephews or cousins!!!! As I said above, the only people who can contest are dependants, or maybe adult children. Siblings, cousins - no chance.

My bachelor cousin left his estate to cousins children, but for some reason left one guy out. We were all shocked and some beneficiaries would have been happy for him to contest it, but he is himself a solicitor and said it was pointless. There is no way he could have been successful, he had no direct link to deceased, wasn't a dependant etc. Yes it was morally bad leaving one person out, when his mum was probably closer to deceased than other cousins, but it was the deceased's choice and wouldn't have stood up to being contested.

The executors were a firm of solicitors and they distributed about 70% of money from his cash savings as soon as probate received (about 4 mths after death). I know as my DC were beneficiaries, and as they were under 18, the solicitor called me to talk through where the money was being put on my kids behalf. So they definitely didn't wait 6mths expecting a claim.

You need to clarify this, but the sibling who is still alive- do they have children? Does the deceased have cousins? Do check because anyone who is still alive has to be involved.

@ConstantlyGardening - please stop spouting rubbish. The only people who can claim on a will are dependants. Not siblings, not cousins, not nieces, not nephews. I certainly didn't contact my mums nieces, nephews and cousins and I didn't get contacted when their parents died. Why would I - they had left a will leaving their estate as they wished? Yes, if they died intestate, their might be a claim by other relatives, but not from a will unless you can show a dependancy.

Why would Ops parent, who is the sibling, have a claim on the estate? It has been left to his/her children, so unless she/he was a dependant, it is none of his/her business.

Fed up with people spouting rubbish as if it's the law 🤐

Sophiesdog11 Are you always so incredibly rude to people? Would you talk to me in real life like this? And you too Jon66?

I think you are confusing the Will and probate.

Here- read Section 5 of the probate form- it asks for all family members including half brothers and sisters.
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688794/pa1-eng.pdf

Sophiesdog11 The OP was asking about PROBATE. Your experience is about your mum's will. Look at the gov.uk info I've linked to. You can now see, I hope, why with my MIL who had 8 other siblings, it necessitated some research.

sophiesdog11 Probate form does ask for the number of any siblings, but you don't need to do any sort of detailed family tree. We certainly didn't list any of my mums nieces, nephews or cousins!!!

Well maybe you were breaking the law. 5.2g means nephews and nieces of the deceased. It's pretty clear what the form asks for.

From the Gov Uk doc linked to.You have to list:

5.2e Whole-blood brothers or sisters who
survived them
5.2f Whole-blood brothers or sisters who did not
survive them
5.2g Children of people at 5.2f who survived them

No, you don't have to list them. You have to give numbers which is what the form asks for and is what sophiesdog11 says. The question is:

Try again - don't know what happened there. Posted before I'd finished typing.

You don't have to list them. The question is:

How many of the following blood and adoptive relatives did person who has died have?

So you are required to give numbers, not names.

And, contrary to what you have said, there is no requirement to contact all living relatives. It may be wise to contact any who may feel they have a claim but there is no requirement to do so.

I think we are splitting hairs here. Listing doesn't mean names - I know perfectly well what's needed as will anyone who has completed the form correctly.

Without making this into an essay, there were some very personal complications around our relative to do with deceased relatives which I don't want to go into here but which was very emotional and distressing.

My MIL was one of 9. They were scattered all over the country and the age range was huge; some who were older had children who were alive or dead.

It might look simple on paper but where families are large, location is across the UK and Ireland, it's not always straightforward.

And, contrary to what you have said, there is no requirement to contact all living relatives.

I didn't say that. Our solicitor dealing with her will did it, we got copies of his letters.

If you read OP's posts correctly you will see that there are no cousins.

"Next of kin is the elder sibling of the deceased and parent of the executors and beneficiaries and knows (and I think helped draw up) the contents of the will. I’ll make sure we have official confirmation of that though

The deceased had no spouse or children, and only one sibling."

Listing doesn't mean names

I think most people would interpret listing as meaning names. "She had 3 uncles" is not what most people mean by listing. If someone is asked to list her uncles they will usually say, "Tom, Dick and Harry".

I didn't say that

Yes you did. Twice. Read your own posts.

NotDavidTenant I wasn't making the point about listing cousins for the OP. I was replying to @sophiesdog11 who said she didn't list some of the necessary information and seemed quite happy in her ignorance.