Wife passed away - what to do about probate?

johnstev

My wife passed in March. We own our home "jointly in shares" without a survivorship clause. My wife did not have any large funds or assets other than our home. 

I am in Scotland and we have two kids. There was no will. 

I wasn't planning on applying for probate as I'm not planning to sell the house or anything.

I'm now thinking that I might not feel the same in 20 years, or that if I die or become infirm, my kids will have a time of it sorting out the house, so I think it'd be best if I get my wife's name removed from the title deeds.

I've done a fair bit of research and because there is no survivorship clause, I think I will need to apply for probate before I can approach a solicitor to deal with the land registry.

The issue i am facing is that it looks like it might cost a small fortune to have a solicitor deal with the probate.

I don't see that my situation is complex enough that I can't apply for probate on my own to keep costs down.

Has anyone any advice on any pitfalls I may encounter? 

The form looks straightforward enough. 

The house is worth about £350k, with 90k left on the mortgage, would this be the value of the asset from my wife's perspective or would it be half that amount since we are joint owners.

Would I need to get a valuation from an estate agent?

Also my wife had very little in the way of possessions, mostly clothes and a few odds and ends, her wedding jewellery. Would I need to list all this as assets on the probate form?

And lastly I think I'm right in saying I'm not going to end up with a big inheritance tax bill am I?

Many thanks

Keep_pedalling

In Scotland you apply for confirmation rather than probate. This intestacy rules in Scotland can be seen on the following link.

https://www.titleresearch.com/news/intestacy-in-scotland-understanding-scottish-succession-rules

You would inherit her share as this falls under prior rights. What I am not sure of is if you actually need confirmation to transfer the property. You certainly don’t need probate in England or Wales when inheriting a share of a house you jointly owned with the deceased but I am not 100% certain it is the same in Scotland. 

buddy9

It would be best if you were to sort out your wife’s estate yourself rather than leave the problem for a future executor to deal with.

The process in Scotland, which isn’t probate, is that where there is no will, and in the circumstances that you describe, you, as the person entitled to, apply to the sheriff court to be appointed executor dative.

Once appointed, you apply to the court for a Grant of Confirmation using form C1. There is a long running thread on Grant of Confirmation Grant of Confirmation.

The issued Grant of Confirmation acts as a midcouple necessary to allow the land register to be changed, or to allow the house to be sold. So it is the issued Confirmation document that is important to have.

The application for appointment as executor and the application for Confirmation can be done yourself without the need for a solicitor (court fees apply for both). If you then wanted to update the title then best to use a solicitor for that part.

There should be no IHT payable.

buddy9

Keep_pedalling said:

In Scotland you apply for confirmation rather than probate. This intestacy rules in Scotland can be seen on the following link.

https://www.titleresearch.com/news/intestacy-in-scotland-understanding-scottish-succession-rules

You would inherit her share as this falls under prior rights. What I am not sure of is if you actually need confirmation to transfer the property. You certainly don’t need probate in England or Wales when inheriting a share of a house you jointly owned with the deceased but I am not 100% certain it is the same in Scotland. 

You need to ignore the blog refered to in the hyperlink. It is out of date already.

johnstev

Thanks for the replies folks. 

buddy9

You will get help on this forum if needed.

johnstev

Thank you. I've been going over the extensive forum post on obtaining confirmation. Such a load of information to dissect. 

I think my first step is to apply to become executor dative as you say, however I don't see a guide on the scotcourts website that explains how to do that. 

It is frustrating that all you get when googling these things are sponsored links for law firms..

buddy9

How to do it.

Print a writ on A4 paper. Lodge two copies with the sheriff clerk of the appropriate sheriff court having jurisdiction, along with evidence of identity and relationship. Court fee is £20.

See fictional example of the style based on your circumstances. You obviously need to change the sheriffdom, court and personal details to suit.

johnstev

This is amazing thank you so much. You're a star.

johnstev

Hello, I've drafted up the writ, is it simply a case of putting two copies in an envelope along with photocopies of my passport and marriage certificate and sending this to the local Sheriff court?

I tried to phone them but it just rings out and disconnects.

buddy9

I don't think photocopies will do it. And you might need death certificate and other id. I'm not sure. I would persevere with calling or try calling another court in the same sheriffdom for advice.