Probate & IHT

Nine_Lives

jimmo wrote: »

If the solicitor is ripping you off can you challenge the solicitor without upsetting your mum?

Question is - do i have any right to? And my mum certainly wouldn't get upset over me challenging someone.
Maybe this is where you & i differ (& i don't mean that in a negative sense). I will tell my mum anything, and she knows this. If it needs to be said & it upsets her, then it still gets said. Sometimes the truth hurts. I expect her to be the same way with me. I don't like anything not said. So in the case you mention with your mum, if that was me, i'd just tell her & my mum knows this.
So no, she'd have no problems, but then, she'd challenge them herself if she felt necessary.

xylophone wrote: »

I am finding it rather surprising that in this "simple" estate, the will has not yet been proved and administration completed.

I don't know what you mean by proved. We have the will if that's what you mean?
Basically all my dad said was his 1st house goes to his daughter from his 1st marriage, our house goes to my mum & his sponsorship of a chinese boy is to continue. That is ALL his will said.

With regard to your mother's having to attend the solicitor's office to swear an oath, has she yet been invited to attend or is this a process that awaits the granting of probate?

I was there for that meeting & the solicitor (or probably the solicitors secretary actually) said that x-y-z would need to get sorted & then they'd bring my mum in to swear an oath (& her brother). That's all i know. I'm positive they've not been though.

What exactly is the information that the solicitor requires and who is required to provide it?

I don't know yet.

Who are the executors?

My mum & her brother. Her brother has told the solicitors not to send any paperwork to him whatsoever (as it costs).

John_Pierpoint wrote: »

You seem to suggest that there is some complexity over the ownership of the houses?

Depends on your view of complex.

My dad had a first marriage & a house with that family that HE (HE, not his wife as she wasn't working) bought. The kids from this marriage were born in the 60s, so they're not kids now. From the divorce (mid 80s) settlement, his 1st wife bagged the house (how nice).

My dad had a share on the house in that he would get the house if 1) his 1st wife died 2) remarried 3) exited the house for 3 months or longer

In his will, he states that his daughter from that marriage gets his share of the house.

Our house is paid for, we're all 18 or older. He states in his will that my mum gets our house.

You say that there is more than one marriage involved - so a possible claim for support from a dependant left out of the will?

No dependants. Other than my mum.

Any outstanding income tax issues - dying in September half way through the tax year, usually means a tax refund ?

IIRC this has been sorted. I remember getting my mum to get on the phone to the tax folk about it. .

Do you have a copy of the will?

Yes.

The executor cannot do much until probate has been granted - so that should be the focus, tying up the lose ends can be done later..

I think everything has been done & we're just waiting on probate being granted. All bills have been covered, direct debits switched over to my mum. Everything we could think of & looked up has been dealt with IIRC, so just the probate left.

xylophone

Proving the will is the process of obtaining probate.
I think that the oath to which you refer is probably that sworn by the executor(s).
http://www.thelawwizard.com/probate/guides/swearing-an-oath-for-probate.html might clarify.

The "x-y-z that needs to get sorted - is this what is holding the process up? Presumably you were told the specifics? If not, you or your mother had better telephone the solicitor to find out the nature of any problem(s)?

With regard to the first marital home, did all or any of 1,2,or 3 actually happen?

Nine_Lives

x-y-z: sorry i can't really remember. The woman might've said, but then i really can't remember. It was a few months ago & my memory is a bit hit & miss.

As for 1, 2 & 3: no, none of them happened.

xylophone

I am wondering as to whether if none of the three conditions was fulfilled, your father had any right to pass the contingent interest to his daughter? Did the contingent interest die with him?

Nine_Lives

Seemingly not. The solicitor was supposed to be looking into it all & signing it over to my half sister.

xylophone

You said that the first wife 'got' the house - was it more the case that your father retained ownership but his ex-wife was given a right of occupation on the conditions previously stated?

Perhaps the delay lies in sorting out all this? No way of knowing unless you ask the solicitor.

Nine_Lives

I saw the divorce papers last year some time, but can't remember the exact wording tbh. Right of occupation certainly doesn't ring any bells, so i don't think it was that. I'm sure she ended up owning the house.
I've told my mum to chase up the solicitor & see what the hold up is.

John_Pierpoint

It sounds very much to me as though the first house is in "an interest in possession trust", with the "number one" wife having rights of occupation for life BUT does the will override the divorce court settlement or deed made during your father's lifetime.
I think the settlement will prevail over the will (but I know even less about legal complexities than I know about tax complexities)

Now a wife leaving an interest in possession trust has special rules from the tax man's point of view BUT my bet is that an EX wife has no more rights than a mistress, from the tax man's point of view.
Trying to substitute the ex wife's daughter on the Land Registry could trigger a tax event (a trust gives valuable country second home to some living woman's daughter, state has old woman claiming benefits and has to wait another 30 years before getting a chance to tax the value).

Who is the "Chinese boy" ? How old is he and where is he domiciled?

There were considerable rule changes in trusts and spouse rights in 2006 & 2007
My initial reaction is that a man with two households to support, owning two houses, leaving one to the daughter of a mistress and establishing a trust for a foreign national; probably does not have an "excepted estate". So the IHT 205 is not appropriate. Send it back and demand the full works to be submitted on the IHT 400.
Given an IHT 400 submission, then the tax tail completely wags the probate dog.
HMRC might be the priority beneficiary and until it protects its position and signs off on the arrangements, nobody else gets a look in.

http://www.hmrc.gov.uk/manuals/ihtmanual/ihtm43000.htm

Nine_Lives

Thanks John. Some of that made sense. Some didn't though.

The Chinese boy is just some boy my dad was sponsoring through some organization. I can't remember the name, SOS Villages springs to mind. I think he's 13 & the agreement my dad had was to sponsor him until he turned 18. He lives over in China somewhere. It's not something any of us would've done, but then it was in my dads will. The first my mum knew of it was when she read the will, but my dad had already spoken to me about it & said he wanted it to continue on the agreement in the event of my dads death. So despite the fact none of us would do it & we'd see the money as being better spent in the household, it was my dads wish, so it should continue as he wanted. Before anyone criticises me for not being the type of person who would volunteer sponsorship, i should point out 1) i'm not right OR wrong for doing so - it's all personal opinion/choice 2) i'm saying it should continue (& is)

Then your final paragraph made me wonder if you understood the situation...

My initial reaction is that a man with two households to support,

He didn't though. He divorced his first wife in the mid 80s. His kids from that marriage were adults by then, yet he continued to give his first wife money until the mid 90s IIRC ...... until he was told to stop (can't remember who by) as he didn't owe her anything any more - the kids were adults & she had no claim on him as they were divorced. My dad saw a solicitor who agreed he should stop making payments. His first wife chased him with her solicitor to have the payments continue, but she got nowhere.
So from the mid 90s, my dad didn't pay anything to THAT household, only ours.

leaving one to the daughter of a mistress

I always thought a mistress was like a bit on the side?? Hmm.


Anyway, i've told my mum to chase them up. I haven't asked her if she's been able to yet.

John_Pierpoint

K_P83 wrote: »

Thanks John. Some of that made sense. Some didn't though.

So from the mid 90s, my dad didn't pay anything to THAT household, only ours. I always thought a mistress was like a bit on the side?? Hmm.


Anyway, i've told my mum to chase them up. I haven't asked her if she's been able to yet.

Presumably the money to the Third World Child is handled via a charity?
The charity would probably be happy to settle for a lump sum now to buy an annuity to forfil your father's commitment? Presumably the child actually exists and it is not one of these "buy a goat for Africa" type deals, which sounds so much more real than "Give us your money".

Of course your father's daughter from his first wife does not think of herself as her father's love child but I don't think HMRC see her mother as having any more rights than a mistress following the divorce?
Presumably the mother has been living rent free in your father's house as the beneficiary of a deed [That is a contract that has been signed sealed and delivered and could be in conflict with the terms of the will? There could be some other sort of arrangement such as a protected tenancy, renewable at will for (say) £1 a year]
How has the necessary maintenance and insurance of the property been handled?

Is there anything cryptic in the will ? Fifty to one hundred years ago there could be strange bequests such as "I leave £10,000 to my dear old friend John Smith or slightly more obviously "I leave £10,000 to my dear old friend John Smith, in the knowledge that he will know what to do with it". The other beneficiaries would be thinking "what ever is this all about". In reality "dear old John Smith" was the trustee of a secret or semi secret trust, that the testator did not want to become the topic of gossip. That could be a trust for the support of his ageing mistress and their love child.