Do I need probate?

[boyse7en]

My father died just before Christmas, and I am trying to sort out his affairs and I am a bit lost on whether I need to apply for probate or not.

He left a will which leaves everything to me and my sister
His assets amount to a half share of his house (he and mum are "Tenents in common", so she owns the other half) and a couple of hundred quid in a joint account with mum.

The Gov.uk website says:

[quote]You may not need probate if the person who died:

• had jointly owned land, property, shares or money - these will automatically pass to the surviving owners
• only had savings or premium bonds

Contact each asset holder (for example a bank or mortgage company) to find out if you’ll need probate to get access to their assets. Every organisation has its own rules.
[/quote]

So I don't think i need to get probate, but I'm not sure.
Anyone done this?

[jeremyc]

Who does the will identify as Executors?

[boyse7en]

jeremyc said:

Who does the will identify as Executors?

Me and my sister

[jeremyc]

You may want to take some advice from a solicitor (I'm not a lawyer), but it sounds to me like you and your sister need to apply for probate. This will enable you to take ownership of his share of the house, and get access the the joint account.

I assume he didn't leave anything to your Mum?

[FurtiveFreddy]

Sorry to hear of your loss.
I lost a family member just before Christmas myself.

You don't need to use a solicitor.

You'll often get better advice and a smaller invoice from a probate and trustee specialist. Look on the STEP website to find one in your area.
Probably a quick call to one will tell you all you need to know.

You can apply for probate yourself or use the same specialist to do it for you.

[Kenty]

IMO - The 50% of the house still forms part of his estate, you don't say if the house
is a 10 bed house on the Wentworth estate or a 2 up 2 down in Doncaster.
It makes a bit of different because probate calculates inheritance tax.
You can get forms off the internet and do it easily yourselves.

[pozi]

Sorry for your loss.

I went through this a couple of years back and only needed the probate forms for sorting a couple of investments in their name. However as the house deeds are Tenants in Common this does require probate forms to be completed.

Strangely I did not need it for the joint bank account which was moved into one name on presentation of the death certificate.

Assuming the will puts your Dad's share of the house into a trust you don't need to do anything with the deeds, it can just sit there until anything happens to your Mum (hopefully not any time soon) or she decides to move.

For such a simple estate it is worth calling HMRC if you get stuck, much cheaper than a solicitor.

Edit to correct. Tenants in Common does require probate forms to be completed because your Dad's share of the asset is in his name only.

Edited by pozi on Friday 4th January 15:05

[boyse7en]

Kenty said:

IMO - The 50% of the house still forms part of his estate, you don't say if the house
is a 10 bed house on the Wentworth estate or a 2 up 2 down in Doncaster.
It makes a bit of different because probate calculates inheritance tax.
You can get forms off the internet and do it easily yourselves.

The house is worth about £350,000 for the lot (so dad's half is circa £175k)
From what i understand you have to report inheritance separately to HMRC before you can apply for probate

[pozi]

boyse7en said:

The house is worth about £350,000 for the lot (so dad's half is circa £175k)
From what i understand you have to report inheritance separately to HMRC before you can apply for probate

Correct, and your Dad's estate would be listed as £175K plus 50% of the joint bank account assuming these are the only assets.

Might be worth getting a friendly estate agent to value the house just to make sure.

[uknick]

You definitely need to apply for probate as the house was owned as tenants in common, not joint tenants.

With regard to inheritance tax (IHT), the IHT form 205 gets filed at the same time as the probate form. I'm assuming it'll be a 205 unless there are other parts of your father's estate you've not mentioned, such as lifetime gifts.

From what you've said there'll be no IHT to pay, so this shouldn't slow up probate.

With regard to valuing the house, I'd get three valuations just in case HMRC decide to look more closely at the estate (unlikely but you never know). Also, as there would appear to be no IHT to pay, make sure it is a fair market value. I have heard of some estate agents who'll value it low because they think their client may want to avoid IHT. However, the estate/beneficiaries can then get hit with capital gains tax if it takes some time to sell the property.

[boyse7en]

pozi said:

Sorry for your loss.

I went through this a couple of years back and only needed the probate forms for sorting a couple of investments in their name.

However I did not need it for the joint bank account which was moved into one name on presentation of the death certificate.

Assuming the will puts your Dad's share of the house into a trust you don't need to do anything with the deeds, it can just sit there until anything happens to your Mum (hopefully not any time soon) or she decides to move.

Hence it sounds like you will not need probate but you will still need to report the value of your Dad's estate to HMRC, even if it is below the inheritance tax threshold. For such a simple estate it is worth calling HMRC if you get stuck, much cheaper than a solicitor.

Thanks for your (and everyone else's) kind thoughts. It came as a bit of a shock as, although he was 87, he had been in decent health until about a week before he died. He was lucky, he got to travel to see his friends in France only two weeks before he fell ill. Didn't realise that would be his last trip.



Perfect. This sounds exactly like my situation.
The half house we inherit is to go into a trust, and the value is well below the Inheritance Tax threshold

[boyse7en]

uknick said:

You definitely need to apply for probate as the house was owned as tenants in common, not joint tenants.

With regard to inheritance tax (IHT), the IHT form 205 gets filed at the same time as the probate form. I'm assuming it'll be a 205 unless there are other parts of your father's estate you've not mentioned, such as lifetime gifts.

From what you've said there'll be no IHT to pay, so this shouldn't slow up probate.

With regard to valuing the house, I'd get three valuations just in case HMRC decide to look more closely at the estate (unlikely but you never know). Also, as there would appear to be no IHT to pay, make sure it is a fair market value. I have heard of some estate agents who'll value it low because they think their client may want to avoid IHT. However, the estate/beneficiaries can then get hit with capital gains tax if it takes some time to sell the property.

Looks like you are right. Just found this on CAB

"However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person's share. Probate or letters of administration will be needed so the personal representative can pass it whoever will inherit the share of the property, according to the will or the rules of intestacy."

[pozi]

boyse7en said:

Thanks for your (and everyone else's) kind thoughts. It came as a bit of a shock as, although he was 87, he had been in decent health until about a week before he died. He was lucky, he got to travel to see his friends in France only two weeks before he fell ill. Didn't realise that would be his last trip.



Perfect. This sounds exactly like my situation.
The half house we inherit is to go into a trust, and the value is well below the Inheritance Tax threshold

Happy to help in what is a stressful time, just note my correction above, the Tenants in Common will require the probate form to be completed if you ever need to change the deeds on your Dad's share of the house. For what it's worth it makes more sense to do it yourself now than have problems later.

[Lemming Train]

Get probate even if you don't legally need it. Many banks insist on it before letting you have the money, even if it's only a relatively small sum of money. If there's property or shares involved then you'll definitely need it as they won't let you do anything without it. I went through all this a few years ago myself so speak from recentish experience. Don't appoint solicitors or "specialists" to do it on your behalf no matter how tempting it may be unless you wish to give them half of the value of the estate in fees. It's a simple enough process to do yourself and there is lots of guidance online. Everyone I dealt with were helpful, except for Yorkshire Bank who were absolute s of the highest order.

[Red Devil]

pozi said:

Assuming the will puts your Dad's share of the house into a trust you don't need to do anything with the deeds, it can just sit there until anything happens to your Mum (hopefully not any time soon) or she decides to move.

Deeds normally refer to specific physical documents.
These are now effectively irrelevant except as items of historical interest.
Unless the land is still unregistered which is pretty unlikely tbh.
https://hmlandregistry.blog.gov.uk/2018/02/05/sear...

OP, condolences on your loss.
As the property is held as tenant-in-common you will need probate.

However, I note you say that your shares in the property are to go into a trust.
I assume that the will provides for the setting up thereof rather than one that already exists.
If so, you need specialist advice. This is definitely not a d-i-y job.
https://www.financialplanning.org.uk/wayfinder/ask...

You will also need to think about how all of this is going to impact on your own wills.
I assume you each have one. If not, then its time to think about getting them done.

[boyse7en]

Red Devil said:

Deeds normally refer to specific physical documents.
These are now effectively irrelevant except as items of historical interest.
Unless the land is still unregistered which is pretty unlikely tbh.
https://hmlandregistry.blog.gov.uk/2018/02/05/sear...

OP, condolences on your loss.
As the property is held as tenant-in-common you will need probate.

However, I note you say that your shares in the property are to go into a trust.
I assume that the will provides for the setting up thereof rather than one that already exists.
If so, you need specialist advice. This is definitely not a d-i-y job.
https://www.financialplanning.org.uk/wayfinder/ask...

You will also need to think about how all of this is going to impact on your own wills.
I assume you each have one. If not, then its time to think about getting them done.

Thanks for the links.
A quick read of that makes it look like that we don't need to do anything about a trust (I know nothing about the setting up of a trust, it was something that the guy who did my parent's wills obviously advised them to do) as the value of the property is less than the inheritance tax threshold.

[Dr Mike Oxgreen]

Lemming Train said:

Don't appoint solicitors or "specialists" to do it on your behalf no matter how tempting it may be unless you wish to give them half of the value of the estate in fees. It's a simple enough process to do yourself and there is lots of guidance online.

^^ This may have been true in your case, and may well be true in the OP’s case, but as a sweeping statement it is certainly not correct in every case. You have also greatly exaggerated the cost of professional advice.

“Half the value of the estate”? That’s utter rubbish. Last year I had to process the estates of my mother and father, which were quite large and complex, complicated by the fact that my father had failed to process my mother’s will (she had died 6 years earlier) so her affairs had to be dealt with in retrospect.

Despite assisting with two estates, and the considerable complexities involved, the total solicitor’s fee came to around £4K, which was a minuscule percentage of the estates. It was money very well spent, particularly since the solicitor invoked an IHT relief that I would never have known about myself and saved about £13k, so he paid for himself several times over. I did the leg-work of compiling valuations and the subsequent distribution of proceeds, but the solicitor handled the figures, provided invaluable advice and compiled the IHT forms and arranged various other legal processes that we had to go through.

That said, it does sound like the OP’s case is relatively straightforward and probably can be done without solicitor involvement - although I’d still suggest that a one-hour chat with a professional might be worthwhile to make sure that the will’s treatment of the property share is fully understood.

But please don’t perpetuate the notion that every estate is nice and easy, and that probate is always a piece of cake. Your sweeping generalisation to avoid professional help could lead some people into unnecessary headaches during an already stressful time.

[Dr Mike Oxgreen]

A couple of other tips from my experience of probate:

• Get plenty of copies of the death certificate and probate certificate. I’d say at least 10 of each, and it’s cheaper to get them issued immediately rather than having to apply for copies later. Then you can send lots of letters simultaneously instead of waiting for the return of certificates.

• If you need an IHT reference number from HMRC it takes a long time for them to issue I’m afraid (I think it took about 6-8 weeks), and without it you can’t pay any IHT. It’s a frustrating wait.

• If you don’t know your father’s National Insurance Number, and you can’t find it on any paperwork, it is well worth obtaining it. Although you don’t need it for obtaining probate (it’s an optional item on the IHT 205 or IHT 405), there are various processes that become much easier if you do have the number (selling shares, for example - as of January 2018 you need the NI number to sell a deceased person’s shares). HMRC won’t give it to you before you’ve got probate (I tried, and they said “no”), but once you’ve got probate you can send them a copy of the probate certificate and a letter requesting the NI number and they’ll send it after about 3 weeks.

• Anything involving HMRC takes at least 3 weeks, and anywhere up to 8 weeks. Don’t bother calling their probate phone helpline - I held for over an hour before concluding that they probably don’t actually man the line. My solicitor echoed this experience.

• If foreign shares are involved, especially US shares, get that process kicked off as soon as possible because that can take a seriously long time. For US shares you’ll need a specialist solicitor who can arrange a “medallion signature guarantee”, and there’s only a small number of such firms in the UK (I used Lester Aldridge, but there are others I believe). My father was an IBM employee, and his shares required a lengthy process to obtain an IRS tax clearance that took just over a year in total. The IRS make HMRC look super-efficient!

Edited by Dr Mike Oxgreen on Saturday 5th January 09:25

[Paul Dishman]

boyse7en said:

Thanks for the links.
A quick read of that makes it look like that we don't need to do anything about a trust (I know nothing about the setting up of a trust, it was something that the guy who did my parent's wills obviously advised them to do) as the value of the property is less than the inheritance tax threshold.

My father had the same, but it wasn't necessary since between the time he died and my mother died the law changed so that his IHT allowance was carried over and added to hers. This was because transfers between married couples are free from IHT, so the death of the first partner meant that no IHT was payable and the IHT allowance un-necessary.

Selling US shares is, as Mike O. notes a royal PITA, we used a stockbroker that our solicitor recommended as they knew the procedure. Both executors had to get their signatures notarised and it took about three months to get the money

Edited by Paul Dishman on Saturday 5th January 18:13

[SimpleSimonSays]

Sorry for your loss.

When we went through the IHT / probate dance with my mum’s estate a couple of years ago, the house valuation had to be carried out by a registered chartered surveyor, rather than estate agents.

I’d echo the comments about professional advice if the estate is in any way complicated - there are a lot of IHT forms to fill in, and it can be expensive getting it wrong!