Probate-free estates? 30 July at 6:21PM in Deaths, Funerals & Probate 27 replies 953 views

Mickey666

I can't remember where but I've read somewhere that probate is not always necessary.  Is this correct?

It sort of makes sense to me because if the deceased had no assets to administer what would be the point?

Then I  thought about the case of a married couple owning their home as joint tenants.  As I understand it, this means that on the first death the total ownership of their home automatically transfers to the surviving spouse.  Even regardless of their will, because the deceased's estate no longer has any ownership of the property.

All well and good (though please correct me if that's wrong).

So, my questions is, does the same principal apply to other joint assets?

I believe, for example, that a joint bank account suddenly belongs to the surviving spouse on the first death and therefore will not be frozen by the bank.

But what about other tangible belongings?  Can the surviving spouse claim that everything they owned between them was on a joint basis?  If so, would that mean that ownership automatically transfers on death?  And even if the surviving spouse was required to prove that was the case, suppose the married couple had previously made a declaration to that effect?  Also, how could that be done in a legally water-tight manner?

In short, if a married couple's total possessions - house, car, bank accounts, clothes, furniture, jewellery, pets, everything - were all jointly owned, wouldn't everything automatically pass to the surviving spouse on first death, thereby rendering the probate process effectively redundant and not legally required?

Mojisola

My mother died before my father.

Her estate was below the IHT level.

She left everything to him but the house and most of their money was in joint accounts so it would have been his anyway.

MovingForwards

Clothes and jewellery doesn't tend to be joint owned, unless same sex and size. ISAs and pensions are not joint, there's bound to be other accounts that are sole names too.

I get where you are coming from, in theory everything could pass to the survivor. In theory non-joint accounts could be closed and paid out, depending on each financial institutions limits.

A lot of families, where there really isn't much, just split what is left and don't go for probate, mearly hand over personal effects as keepsakes.

More people are holding single, not joint, assets to also protect the other from care fees or to retain independence.

Mickey666

So there was no need for probate?

That's sort of the scenario I've been discussing with a friend who is, sadly, in the process of preparing for the death of one of their parents (mother).  They both have wills, with everything left to each other and the survivor named as executor.  The intention is to organise things so that there will be as little as possible for the surviving father to 'execute'.

I think there may be a problem with the mother's drawdown pension pot because I can't see how that could be deemed - or even converted - to be a joint asset.  But even so , as I understand things, pension posts are not subject to IHT so not counted in the value of an estate, so the mother could still remain below the IHT threshold (£10k I think?) so there would be no probate.

Does this sound right?

sheramber

My husband's will left everything to me. 
House was in joint names.
He had two single bank accounts , a personal  pension in drawdown, a car and a  life insurance policy.
Probate was not required.
Joint accounts became sole on production of copy of death certificate.. His own bank accounts were paid out on production of death certificate, similarly pension and life insurance were paid to on production of death certificate  and copy of will.  
Registered keeper of car was changed with DVLA and car insurance continued  as executry . 
 

Mickey666

That’s encouraging, thank you.

Savvy_Sue

It's worth pointing out, however, that even if probate is not needed on the first death, it is sometimes needed on the second, and sometimes that includes the need to deal with the first estate before you can fully establish the value of the second. 

Mickey666

I imagine that the second death almost always requires probate because there is likely to be a house involved plus there is IHT to consider, which is not a factor for spousal transfers.

But I don't really get the point about having to deal with the first estate, because if everything is joint-owned as discussed then everything goes into the second death's estate and there is effectively no value from the first estate.

Unless I'm misunderstanding.

Keep_pedalling

Mickey666 said:

I imagine that the second death almost always requires probate because there is likely to be a house involved plus there is IHT to consider, which is not a factor for spousal transfers.

But I don't really get the point about having to deal with the first estate, because if everything is joint-owned as discussed then everything goes into the second death's estate and there is effectively no value from the first estate.

Unless I'm misunderstanding.

But there are some bid downsides to holding everything jointly, so why would you want to do that?

We have both built up significant S&S ISAs over the years which means probate can’t be avoided when the first of us kicks the bucket, but I would not dream of cashing those in and expose then to both dividend and capital gains tax just to avoid probate.

Savvy_Sue

Well, it could just be me ... 

We did obtain probate on the first death (there were bequests other than to spouse), but did not do anything about ownership of the house, which we thought would be as easily dealt with on the second death. Unfortunately, for some reason I couldn't fathom, the buyer's solicitors insisted at the last minute on having a document signed by all the beneficiaries, because the house was still in joint names. That made me wish we'd dealt with that on the first death. 

And there have been some threads on here where probate was not obtained at the time, other deaths have occurred, and there's been a 'messy' trail to establish who actually owns a property and what the value of the estate is. 

getmore4less

Probate(grant of administration) is only required if someone holding an asset requires it.
I suspect HMRC won't accept the capital return without it but not sure.

Only around 50% of estates get a grant.

Where there is a will and named executors the powers to administer come from the will, others should apply for a grant but in many cases it is not needed to administer and estate, as no one checks you can just get on with it unless someone asks for a grant.

This could be various things like,  sole owner of property, large amounts in an account, shares, DWP and others.

Where there will be future need for transferable nil rate bands having a HMRC record of the first death can be handy.

An inventory and account should always be done even if not obtaining a grant or submitting IHT forms.