Probate

ccygirl

Hi, I am the sole executor of my mothers will. She sadly passed away in February and I have gathered together all the info needed for probate.

Her will included a discretionary nil rate band trust. We do not want implement the trust as it was only created to avoid IHT. Therefore I have contacted a solicitor to get a deed of appointment, he seemed surprised that I haven't got Probate yet. I thought I needed the deed of appointment to submit to the probate office.

Anybody help? The solicitor seems unwilling to give me any advice as I have only asked for the deed of appointment and am doing the rest myself.

SeniorSam

If you contact the Probate office they will advise you. In any event, this should not delay Probate if they have all the information.

If your Father died earlier, it would be then that the Discretionary Trust would be formed, not on the second death. Did this happen? If so, a deed of appointment is not necessary and the solicitor should have said so.

If your Mother is the first to die, then a Deed of Variation would be required, but is not necessary for up to 2 years. There can be advantages in keeping the Discretionary Trust as it protects up to £325,000 against any care costs that may be incurred at a later date. We have one in our Wills and will not be changing unless certain things happen after the first of us dies and I have explained this to my family

Do ask further questions if you wish. You can send a private message if you don't want to discuss on the thread.

Hope this helps

Sam

Dillence

Hi, My dad passed away 2 years ago followed by my mum 10 months later. Both had discretionary nil rate band trust in their wills but I arranged probate myself in both cases without the need for the deed of appointment.

After my dads death we were reviewing what to do next with the trust when my mother passed so it changed things again.

As the previous poster has said it does depend if your father is still alive.

I do have some information on this that my solicitor has sent to me which I could PM if you think it might help.

Sorry for your loss.

ccygirl

Hi, sorry if I was a bit vague.

My dad is still with us and hopefully will be for a good while. I'm not really keen to raise the issue of care as he is quite fit and if he did need some care then I think we would try to manage without putting him in a care home.

Really what I was asking is do i need this document to apply for probate?

I have already phone the probate office and they will not give advice only guidance on how to complete the forms. It's not a complicated estate just some cash investments and the house which is held as tennants in common.

getmore4less

AIUI all you need for probate is the will and the relevent tax forms.

SeniorSam

If your Mother has left her assets to your Father but with a Discretionary Trust Will, then you have 2 years in which to change the Will by using a Deed of Variation, which a solicitor can prepare for you.

This should not prevent the Probate on you Mother's estate from being granted if you have provided the Probate Court with all the details of your Mother's estate in the appropriate form, together with her original Will, which they will retain on file, so take a copy to keep.

As the sole Executrix, you are responsible for dealing with her assets, but, as said before, you have 2 years in which to have a Deed of variation executed to set aside the Discretionary Trust if you wish to do that.

At any time before that, you can determine if you wish to have all assets put with your Father, or, as I indicated earlier, the value of the nil rate band allowance (£325,000 at this time), can be reserved for the Trust, but you can give loans of that amount for your Father if you wish. The benefit of this is that the £325,000, can never be called on as being owned by your Father, even though you may loan that amount to him from the Trust.

This is a most useful Trust to legally avoid any Care costs and safeguard that amount for the family, but it would not prevent your Father from doing whatever he wished with the money/capital. On his death, he also has a nil rate band allowance, so if the total of both estates is below £650,000, then there will be no inheritance tax to pay.

All this may be totally irrelevant if both the estate values are much lower and not expected to rise in the years ahead.

I hope this helps clarify matters for you

Sam

getmore4less

Just in case it is not clear, it took me a while to get my head around it thinki it was something special.

Probate is a legality that says that the executors/personal reps are allowed to deal with the estate, collect assets, pay the debts and distribute.

Hawkeye4aneye

ccygirl wrote: »

Hi, sorry if I was a bit vague.

My dad is still with us and hopefully will be for a good while. I'm not really keen to raise the issue of care as he is quite fit and if he did need some care then I think we would try to manage without putting him in a care home.

Really what I was asking is do i need this document to apply for probate?

I have already phone the probate office and they will not give advice only guidance on how to complete the forms. It's not a complicated estate just some cash investments and the house which is held as tennants in common.

As others have said you just need to apply for Probate and fill in the appropriate forms depending on what is involved and the values concerned. The property value is half the total as it is held as tenants in common. Once these are completed ring up the Probate Office to make an appointment to go in with the Original Will and complete this, swear the Oath and this way the Grant will be issued in a few weeks later normally.

Once you have the Grant you can encash the Investments/Bank accounts and account to your father, if this is what is decided, once you have sorted other matters such as Income Tax and pay off any debts and the Funeral Expenses.

The advantage of the NRB Trust in useful with regard to the property as others have mentioned this could be taken into account if your father has to go in a home, so if this half is "loaned" to your father under the Trust it's value would not be taken into account so would be protected for the ultimate beneficiaries.
Advice from a STEP registered Solicitor would be useful once Probate has been sorted out so that your father and you and other family members can be correctly advised.

pondercherry

My father died July 2010 .He left a small will with explicit instructions My brother and I were worried about how to sort things out(probate) so a friend of my brother an Accountant offered to do the ncessary paperwork for us . I have tried to ask questions about how things are progressing but to no avail He ignores my Emails etc. I do not wish to cause problems with my brother but just where do I go from here? I appreciate these things can take time but as there is no property involved and only a few thousand pounds I wonder what the hold up could be ! My brother and I are the executors .He is vague about asking questions as of course he is still doing business with his accountant .Any suggestions will be greatly appreciated

John_Pierpoint

The accountant might be held up doing the final income tax return(s) for your late father (As he died in July he could well be entitled to a tax rebate as the tax system was expecting him to enjoy 12 months income not 3 - 4 months, by the 5th of April 2011).
Has your father been overpaid benefits?
Or he might be struggling with some organisation that does not understand correctly the concept of probate [believe it or not I had a real struggle with Barclays Bank - which had subcontracted the administration to another organisation - there is a thread on here from fellow sufferers].
Who does the will name as executor(s)? Talking directly to the accountant is a bit like employing a builder and trying to bypass your architect.
The executor is the one who should know what is happening.

It is generally accepted that the executor has a year in which to get his act together - remember it can means doing the paperwork needed by the tax man and then getting the legal system to acknowledge the executor as the legal personal representative and then advertise for any other creditors/claimants. I found that the delays built into the system, especially in the London area (can't get knowledgeable staff?) meant 9 months, if doing one job after another. It is a bit like buying a new house - it takes 12 months to see what crops up before you decide to remodel the garden with a "JCB". [Some people have watched those silly remodel your garden in a weekend programmes]

If you want to produce a statement of affairs on here for your late father, we would be in a better position to comment on the speed of the accountant.