Probate or not?

BrainDrained

My mum has just died and I have seen her Will.  Her and her husband have simple  "mirror wills" leaving everything to the surviving partner and in the event of their pre-decease then equally between 5 children. 

Both she and her husband were in second marriages and both had children before they got together.

Apart from a few small items, the bulk of her estate - house, savings etc - is in joint names.  I understand this automatically goes to her husband, so her actual personal assets are fairly small.  As this is well under £5K there is no requirement for probate.

However, my sister is concerned that there is nothing to prevent her husband making a new Will leaving everything to HIS children and completely ignoring us.  
Would having a grant of probate, and thus an officially recognised copy of her Will, make it easier to challenge this if he does do it?

I suppose in the greater scheme of things it doesn't matter now, they had been married for over 30 years, but the bulk of the money used to buy the house in the first place was HER divorce settlement, he didn't bring anything into the marriage and for most of their working lives together she was actually the main wage earner too.

If we did apply for probate, I suppose he as surviving partner would have to agree, although as everything is very straightforward I would be doing all the paperwork.  At the moment he is in no fit state to make any rational decisions and although I am doing my best to help him my sister feels we should try to protect our interests if at all possible.

p00hsticks

BrainDrained said:

If we did apply for probate, I suppose he as surviving partner would have to agree, although as everything is very straightforward I would be doing all the paperwork. 

It is the executor(s) of the will who apply for probate. Who is that ?

Keep_pedalling

Probate won’t do anything to prevent him changing his will. Are you sure that the will leaves her husband her share of the will outright? The sensible approach for people in their situation would to have left your share to your own children with a life interest for your spouse.

Who did she appoint as executors?

Thrugelmir

Who were the named executors in the will? 

By obtaining probate you have little option other than to follow the will. Unsure what you are hoping to achieve. As the assets are now his. There's no entitlement to an inheritance. Bringing the matter up is a sure way of creating a rift! 

BrainDrained

Keep_pedalling said:

Probate won’t do anything to prevent him changing his will. Are you sure that the will leaves her husband her share of the will outright? The sensible approach for people in their situation would to have left your share to your own children with a life interest for your spouse.

Who did she appoint as executors?

No, the wording says my estate and personal possessions to my husband and if he shall predecease me then equally... etc etc, (not actual wording, I don't have the copy in front of me)  There is definitely no mention of "in trust" or a lifetime interest or anything like that, which TBH did surprise me.  The Wills were drawn up by solicitors, but many years ago.  I think attitudes to this have changed more recently as blended families have become more common.  

The survivor(s) are executors, so at the moment just her husband. 

But as I said, my sister & I are sorting everything out for him as he has just about gone to pieces and isn't capable of doing anything for himself at the moment.  He is being guided by us, so if I tell him he HAS to apply for probate he will.  I will complete the paperwork for him and explain everything.  I did the probate application after my father died (I was one of his executors) so I do fully understand the process.

At the end of the day we aren't talking about an enormous amount of money, but my sister is concerned about the principle involved.

Keep_pedalling

Probate is not required but it would be good to draw up a set of estate accounts as this will make things simpler for his executors when he dies.

It sounds like you are on very good terms with him, so I think you just need to follow your mothers lead and trust him on this.

One future problem I foresee is the lack of administrator for his estate. Having no executors from a younger generation when they are available is not a good idea, we’re they actually drafted by a solicitor?

BrainDrained

Thrugelmir said:

Who were the named executors in the will? 

By obtaining probate you have little option other than to follow the will. Unsure what you are hoping to achieve. As the assets are now his. There's no entitlement to an inheritance. Bringing the matter up is a sure way of creating a rift! 

I'm perfectly happy to leave things as they are, as you say there is nothing to prevent him doing what he wants with what is now legally HIS.

It was my sister who mentioned the possibility of a new Will to me.  There's no way she would say anything to him about it!

BrainDrained

Keep_pedalling said:

Probate is not required but it would be good to draw up a set of estate accounts as this will make things simpler for his executors when he dies.

It sounds like you are on very good terms with him, so I think you just need to follow your mothers lead and trust him on this.

One future problem I foresee is the lack of administrator for his estate. Having no executors from a younger generation when they are available is not a good idea, we’re they actually drafted by a solicitor?

Future execs no problem - its all of the surviving children.  Currently aged in the 50s and 60s, he is 89 so we probably aren't talking about decades. 

Will was drawn up by a solicitor

getmore4less

Who has LPA?

BrainDrained

getmore4less said:

Who has LPA?

no one at the moment.  It has been discussed but nothing formal set up yet.  We suggested one person from each side should do it jointly.