Concerns With Probate

TimmyG1964

Long story short....

After my father died, my sister instructed his solicitors to deal with probate.

I'm sole executor (first and hopefully last time) and my sister and I are the only beneficiaries. As my sister instructed the solicitors, I assumed we were joint executors until after probate was granted and I downloaded a copy of the will.

Apart from confirming with the solicitors that I will act as executor, I've never spoken to them. They got all information from my sister. Probate was submitted without my authorisation and with a figure approximately £40,000 lower than it should be, although both figures are below the IHT level.

Should the probate figures be updated with HMRC (the solicitor says not)?
The under reporting is due to the value of my fathers house. Am I going to have to pay CGT on any higher value that the house is sold for?
As my sister is a beneficiary not executor. Should the solicitor have even been talking to her let alone using figures she provided?
  

tls123

Not sure how you say you were probate was submitted without your authority. The probate application requires you as executor to sign it and therefore you would have been named on the grant. Did that not happen? 

TimmyG1964

I haven't signed it. 

I received the solicitors terms of business about 4 months after they 'overlooked' my original phone call confirming I would be executor. The single penultimate sentence in a multi-page Terms of Business email asked me to approve the legal statement for submission, along with an accompanying attachment but I missed this and didn't open them until after probate had been granted and the solicitor referred me back to it.

  

msb1234

I suggest you contact the solicitor and make an appointment to go in. Tell them you wish to complain about their handling of your dad’s estate. They’ve seemingly acted incorrectly.

tls123

Did you sign anything to suggest you stepped down as executor, power reserved on the grant of probate? The original will is submitted with the probate application so if you were named on the will the probate office would have picked up on this. Sorry just trying to understand how so,I toros could have got probate. 

Keep_pedalling

When you appoint a solicitor to apply for probate they are acting as your attorney and they tls123 said:

Not sure how you say you were probate was submitted without your authority. The probate application requires you as executor to sign it and therefore you would have been named on the grant. Did that not happen? 

When a solicitor is appointed to apply for probate on behalf of an executor they are acting as the executor’s attorney and they will sign form PA1P, but the grant will still issued in the name of the executor.

It seems between the sister, the solicitor and the OP a right !!!!!!-up has happened.

Was an IHT return required? If it was a corrective valuation can be submitted using form C4.

mybestattempt

TimmyG1964 said:

Long story short....

Probate was submitted without my authorisation and with a figure approximately £40,000 lower than it should be, although both figures are below the IHT level.

Should the probate figures be updated with HMRC (the solicitor says not)?
The under reporting is due to the value of my fathers house. Am I going to have to pay CGT on any higher value that the house is sold for?
  

On the CGT question the same date of death/probate value of the property must be used for both IHT and CGT purposes.

https://www.gov.uk/hmrc-internal-manuals/capital-gains-manual/cg32210

You seem to think the probate/date of death value was too low because it will sell for more and there maybe CGT liability.

If so, and there's still no IHT using the sale value for the property (so it remains an excepted estate) then HMRC will apparently deny a claim to uplift the probate/date of death valuation:

https://www.gov.uk/hmrc-internal-manuals/inheritance-tax-manual/ihtm33026

I agree with @msb1234, an appointment with the solicitor, perhaps with your sister there as well, to discuss the issues and decide how to proceed with the administration of the estate. 

Grumpy_chap

TimmyG1964 said:

Long story short....

After my father died, my sister instructed his solicitors to deal with probate.

I'm sole executor (first and hopefully last time) and my sister and I are the only beneficiaries. As my sister instructed the solicitors, I assumed we were joint executors until after probate was granted and I downloaded a copy of the will.

Apart from confirming with the solicitors that I will act as executor, I've never spoken to them. They got all information from my sister. Probate was submitted without my authorisation and with a figure approximately £40,000 lower than it should be, although both figures are below the IHT level.

Should the probate figures be updated with HMRC (the solicitor says not)?
The under reporting is due to the value of my fathers house. Am I going to have to pay CGT on any higher value that the house is sold for?
As my sister is a beneficiary not executor. Should the solicitor have even been talking to her let alone using figures she provided?
  

It seems odd that the Solicitor continued to act on your Sister's instruction once they saw the Will and that the OP was sole Executor.

The probate value is probably academic if the estate is well below IHT thresholds regardless.

As for the potential for CGT that the Estate (not the OP) may be liable for, what is the time scale between the death and house sale?

tls123

Keep_pedalling said:

When you appoint a solicitor to apply for probate they are acting as your attorney and they tls123 said:

Not sure how you say you were probate was submitted without your authority. The probate application requires you as executor to sign it and therefore you would have been named on the grant. Did that not happen? 

When a solicitor is appointed to apply for probate on behalf of an executor they are acting as the executor’s attorney and they will sign form PA1P, but the grant will still issued in the name of the executor.

It seems between the sister, the solicitor and the OP a right !!!!!!-up has happened.

Was an IHT return required? If it was a corrective valuation can be submitted using form C4.

The OP didn’t instruct the solicitor though his sister did who wasn’t an executor on the will. That was my point. 

Keep_pedalling

tls123 said:

Keep_pedalling said:

When you appoint a solicitor to apply for probate they are acting as your attorney and they tls123 said:

Not sure how you say you were probate was submitted without your authority. The probate application requires you as executor to sign it and therefore you would have been named on the grant. Did that not happen? 

When a solicitor is appointed to apply for probate on behalf of an executor they are acting as the executor’s attorney and they will sign form PA1P, but the grant will still issued in the name of the executor.

It seems between the sister, the solicitor and the OP a right !!!!!!-up has happened.

Was an IHT return required? If it was a corrective valuation can be submitted using form C4.

The OP didn’t instruct the solicitor though his sister did who wasn’t an executor on the will. That was my point. 

I was just making the point that an executor does not have to sign a PA1P, their legal representative does. On the face of it in this case the solicitor did not have the OPs authority to act for them, however there was communication between the OP and the solicitor where he agreed to act as executor. What else was said during those conversations we don’t know but this seems to be where some confusion between the parties has happened. 

TimmyG1964

Keep_pedalling said:

tls123 said:

Keep_pedalling said:

When you appoint a solicitor to apply for probate they are acting as your attorney and they tls123 said:

Not sure how you say you were probate was submitted without your authority. The probate application requires you as executor to sign it and therefore you would have been named on the grant. Did that not happen? 

When a solicitor is appointed to apply for probate on behalf of an executor they are acting as the executor’s attorney and they will sign form PA1P, but the grant will still issued in the name of the executor.

It seems between the sister, the solicitor and the OP a right !!!!!!-up has happened.

Was an IHT return required? If it was a corrective valuation can be submitted using form C4.

The OP didn’t instruct the solicitor though his sister did who wasn’t an executor on the will. That was my point. 

I was just making the point that an executor does not have to sign a PA1P, their legal representative does. On the face of it in this case the solicitor did not have the OPs authority to act for them, however there was communication between the OP and the solicitor where he agreed to act as executor. What else was said during those conversations we don’t know but this seems to be where some confusion between the parties has happened. 

Thank you for the comments and advice.

My father died in February, I phoned to confirm I'd at in mid March, so no written conversation, solicitor acknowledged they'd 'overlooked' my confirmation on June 4th so I reconfirmed by email. Solicitor asked my sister for death certificate and my ID on 10th June which I sent same day. The first email addressed directly to me was 13th June when I received Terms of Business (along with a copy of the legal statement which I didn't notice) on 13th June and paid disbursements the following day by faster payment. There were no phone calls during that time so no conversation where they could have misconstrued my authority to submit probate. The only thing could be that they assumed as I had paid disbursements I was authorising it. It was then submitted on the 17th. Probate was granted on July 5th but the solicitors didnt confirm this, I found out by searching the website.

The house is on the market now but it's likely to be 9 months plus from death until completion.

I submitted a formal complaint to the solicitors on Monday, got an acknowledgement same day saying that it would be discussed that afternoon but nothing back yet.

I'll come back with any developments