Lost will - Unused nil rate band

missfunkymonkey

Hi,

I hope someone can give me some advice.

My father died in 2002 and he had a joint will with my mother so the family home and plus a couple of insurance policies he held were passed straight to her meaning his nil rate band of £325,000 was unused.

My mother subsequently made her own will which is safe however, during a house move, the joint will she held with my father was lost. The solicitors who drew up the joint will closed years ago and there’s no record of it on the government register either.

We still have my father’s death certificate but are a bit worried that come the time when my mother passes on and we make a claim to HMRC to transfer for my late father’s unused nil rate band, it may be refused without being able to show proof of the joint will and that no one apart from my mother inherited from him. Does anyone know how strict this rule is or are there other ways they can check his nil rate band was unused?

Any advice would be appreciated.

unforeseen

Assuming it went to probate then you should be able to get a copy from the probate registry.

ETA

Just saw no record so was probate ever applied for?

missfunkymonkey

No, probate wasn't applied for. The family home he owned jointly with my mother and a couple of his insurance policies passed to her. There were no other beneficiaries so none of his £325,000 nil rate band was used. We're just worried HMRC may say it can't be transferred without seeing his will.

Thanks

securityguy

Without probate, a will is just a piece of paper with some signatures on it. If a will is admitted to probate, then it is demonstrably the will that the executors used to wind up the estate (absent malpractice on their part). If a will is not admitted to probate, who is to say how the estate was wound up? Perhaps there was another will. Perhaps (as other threads recount) it was never done. Who knows?

So I can't really see a situation in which a will which was not admitted to probate would be evidence of much. If the HMRC were to claim that somehow your father used his IHT allowance, then simply producing a will which wasn't admitted to probate wouldn't really say very much.

And thinking about it, producing a will which _was_ admitted to probate wouldn't, either: "I leave everything to my wife" might encompass one pound or a million pounds, and the will itself wouldn't help resolve that.

So I don't think you need to worry. A will, probated or not, in isolation doesn't provide much useful information. IANAL.

Malthusian

securityguy wrote: »

And thinking about it, producing a will which _was_ admitted to probate wouldn't, either: "I leave everything to my wife" might encompass one pound or a million pounds, and the will itself wouldn't help resolve that.

But whether it's £1 or £1 million, she would get her husband's £325,000 nil rate band either way.

However, "I leave £100,000 to my wife, and the residue to my sister" would render the Will useless in terms of proving how much nil rate band was passed to the wife, without knowing what "the residue" was.

I would hope that the burden of proof is on HMRC to show some evidence that the father had some assets which were passed to someone other than the wife (which as the Will didn't go through probate is pretty far-fetched) but I haven't filled in enough IHT forms to say for sure.

Mojisola

missfunkymonkey wrote: »

No, probate wasn't applied for. The family home he owned jointly with my mother and a couple of his insurance policies passed to her. There were no other beneficiaries so none of his £325,000 nil rate band was used. We're just worried HMRC may say it can't be transferred without seeing his will.

My mother's estate didn't go to probate for the same reasons.

We didn't have to produce her will when Dad died.

missfunkymonkey

Thanks so much for the advice everyone, that has helped put my mind at rest for now. I forgot to mention that I was the Executor of the joint will that was lost, and, I am the Executor in my mother's new will so perhaps that would also work in my favour if an oath needs to be sworn should it come to it? I was looking at the HMRC claim form IHT402 and there is a question asking if the person who died first left a will and if so to enclose a copy. Hpothetically, if I was completing the claim form today, I presume that I would tick yes and explain in a covering letter that unfortunately the will was lost?

Thanks

Yorkshireman99

missfunkymonkey wrote: »

Thanks so much for the advice everyone, that has helped put my mind at rest for now. I forgot to mention that I was the Executor of the joint will that was lost, and, I am the Executor in my mother's new will so perhaps that would also work in my favour if an oath needs to be sworn should it come to it? I was looking at the HMRC claim form IHT402 and there is a question asking if the person who died first left a will and if so to enclose a copy. Hpothetically, if I was completing the claim form today, I presume that I would tick yes and explain in a covering letter that unfortunately the will was lost?

Thanks

I suggest it is very unwise to try and DIY this. You should ask an IHT specialist first. A few hndred pounds is likely to save you lots more. HMR&C don't take many prisoners!

getmore4less

The issue can be showing none of the estate used any nil rate band.

If the house was joint tenants then you have survivorship for that along with any joint accounts.

If the insurance paid out as trusts that is covered, if not as long as them along with the rest would have gone to spouse through intestacy(not too much so the kids should have got some) that helps cover that angle.



It does highlight that it can now with transferable nil rate bands be worth doing an IHT return even if you don't need probate then HMRC have a record of the estate for future use.


If £200k of house nil rate band will be enough it will be straightforward anyway.

cte1111

I think the confusion arises from use of the term 'joint will'. Everyone has to have their own individual will, there is no such thing as a joint will for 2 people.

Often a married couple will choose to write their wills at the same time, with the same solicitor and leave everything to each other. This just means that they each, at that point, have a will with terms that happen to mirror each other. It does not prevent either person writing a whole new will whenever they like.

Mojisola

cte1111 wrote: »

I think the confusion arises from use of the term 'joint will'. Everyone has to have their own individual will, there is no such thing as a joint will for 2 people.

Often a married couple will choose to write their wills at the same time, with the same solicitor and leave everything to each other. This just means that they each, at that point, have a will with terms that happen to mirror each other. It does not prevent either person writing a whole new will whenever they like.

A couple can have a joint will but it's not common these days. A joint will can't be changed after the first death.

Mirror wills are more usual but the survivor of the couple is free to make a new will and distribute their estate as they wish.