Retrospective Probate Questions

Blackbird94

My brother, sister and I are currently in the process of selling our late mothers house who died in 2020. Probate was dealt with in 2022 and my brother is the Administrator/Executor.

The solicitor handling the sale has received all doc's etc but after seeing that the property deeds only name my father (who died in 2013)  and my father also leaving no will has stated that we will now need to provide a retrospective probate 'Letters of Administration'  on behalf of our mother for the sale to proceed even though my brother already has 'ownership' as it were of the property.

They were married in 1964
House was bought in 1966

We of course thought that ownership of the house had simply passed over to the spouse. Does anyone have previous experience/knowledge of this?

Also I dealt with my mothers probate in 2022, it wasn't really that hard but the solicitor has recommended that we have 'legal help' with obtaining probate for my mother due to the 'complexity' not to mention the large amount of money they will charge for doing so!

Again has anyone already been in this situation and dealt with a retrospective probate similar to this?

Thanks in advance.

p00hsticks

Blackbird94 said:

We of course thought that ownership of the house had simply passed over to the spouse.

It will only pass over to the spouse if the property was owned jointly, either as joint tenants (in which case it passes over automatically, regardless of any will) or as tenants in common when there is a will leaving it to the other

Blackbird94 said:

The solicitor handling the sale has received all doc's etc but after seeing that the property deeds only name my father (who died in 2013)  and my father also leaving no will has stated that we will now need to provide a retrospective probate 'Letters of Administration'  on behalf of our mother for the sale to proceed even though my brother already has 'ownership' as it were of the property.

I presume by your 'brother already has 'ownership'' statement you are referring to the brother being executor of your mothers estate. 

But you first need to take a step back and establish that the property did indeed pass to your mother in it's entirety following your father's death.

If your father owned the property in his sole name and didn't leave a will, then you'd need to follow the rules of intestacy as they were in 2013. I'm not sure if they've changed since then, but depending on the value of the estate and given that there are children  the spouse wouldn't necessarily by entitled to the whole so the solicitor is correct in saying that it's more complicated.

RAS

One off the most important things is going to establishing a value for the house in 2013, and any other assets, as that is a big factor in determining whether your mother inherited the house solely, or whether portions passed to the children.

Blackbird94

p00hsticks

Yes sorry, I was referring to him being the executor of the estate.

That's interesting regarding the property in its entirety might not have passed to my mother as i've just been reading up on the rules of intestacy!

I have no idea if you know the answer but If the value of the estate/property was under the 2013 spouse' threshold (not sure if it was) and my mother did inherit everything under the rules of intestacy, would  probate still be needed to confirm her ownership of the house?

p00hsticks

Blackbird94 said:

p00hsticks

Yes sorry, I was referring to him being the executor of the estate.

That's interesting regarding the property in its entirety might not have passed to my mother as i've just been reading up on the rules of intestacy!

I have no idea if you know the answer but If the value of the estate/property was under the 2013 spouse' threshold (not sure if it was) and my mother did inherit everything under the rules of intestacy, would  probate still be needed to confirm her ownership of the house?

Not 100% sure, but as it was in your fathers sole name I think you'd need probate / letters of administration for your fathers estate to  for in order for the Land Registry to recognise the change of ownership. There is a @Land_Registry representative who frequents this forum who should be able to confirm or deny...

Saver52

In 2013 the rules of intestacy for a deceased person who was married with children were that the spouse would receive the personal belongings of the deceased, plus the first £250,000 of the estate, plus half the remaining estate. The children would receive the other half of the remaining estate divided equally between them all. So not that complicated.

p00hsticks

Saver52 said:

In 2013 the rules of intestacy for a deceased person who was married with children were that the spouse would receive the personal belongings of the deceased, plus the first £250,000 of the estate, plus half the remaining estate. The children would receive the other half of the remaining estate divided equally between them all. So not that complicated.

Not that complicated if done at the time, but attempting to go back now to establish the contents and value of the estate as at 2013 is going to be very tricky unless records of e.g savings amounts, house value etc were recorded at the time and are still available today. 

Blackbird94

p00hsticks said:

Saver52 said:

In 2013 the rules of intestacy for a deceased person who was married with children were that the spouse would receive the personal belongings of the deceased, plus the first £250,000 of the estate, plus half the remaining estate. The children would receive the other half of the remaining estate divided equally between them all. So not that complicated.

Not that complicated if done at the time, but attempting to go back now to establish the contents and value of the estate as at 2013 is going to be very tricky unless records of e.g savings amounts, house value etc were recorded at the time and are still available today. 

Thanks both.

Only a small amount of money was left for which we have bank records.

Looking on Rightmove's sold section (if it could be used as an approximate valuation tool) I have found a similar 3 bed semi on the road that sold in May 2014 for £295,000, so the estate was probably under £300,000 in early 2013. If we do have to get probate for my mother we may have some indication as to the value of the estate at the time.

p00hsticks

Blackbird94 said:

p00hsticks said:

Saver52 said:

In 2013 the rules of intestacy for a deceased person who was married with children were that the spouse would receive the personal belongings of the deceased, plus the first £250,000 of the estate, plus half the remaining estate. The children would receive the other half of the remaining estate divided equally between them all. So not that complicated.

Not that complicated if done at the time, but attempting to go back now to establish the contents and value of the estate as at 2013 is going to be very tricky unless records of e.g savings amounts, house value etc were recorded at the time and are still available today. 

Thanks both.

Only a small amount of money was left for which we have bank records.

Looking on Rightmove's sold section (if it could be used as an approximate valuation tool) I have found a similar 3 bed semi on the road that sold in May 2014 for £295,000, so the estate was probably under £300,000 in early 2013. If we do have to get probate for my mother we may have some indication as to the value of the estate at the time.

The issue you have if the house was worth over £250,000 is that under the intestacy rules of the time, as described by saver52, some of that value should have gone to the children at that time (or some deed of variation or buy out done to keep the property solely for the mother).

I have no idea how you'd sort that out now but don'; think it's purely self-interest that is causing the solicitor to say you need professional guidance...

Keep_pedalling

p00hsticks said:

Blackbird94 said:

p00hsticks said:

Saver52 said:

In 2013 the rules of intestacy for a deceased person who was married with children were that the spouse would receive the personal belongings of the deceased, plus the first £250,000 of the estate, plus half the remaining estate. The children would receive the other half of the remaining estate divided equally between them all. So not that complicated.

Not that complicated if done at the time, but attempting to go back now to establish the contents and value of the estate as at 2013 is going to be very tricky unless records of e.g savings amounts, house value etc were recorded at the time and are still available today. 

Thanks both.

Only a small amount of money was left for which we have bank records.

Looking on Rightmove's sold section (if it could be used as an approximate valuation tool) I have found a similar 3 bed semi on the road that sold in May 2014 for £295,000, so the estate was probably under £300,000 in early 2013. If we do have to get probate for my mother we may have some indication as to the value of the estate at the time.

The issue you have if the house was worth over £250,000 is that under the intestacy rules of the time, as described by saver52, some of that value should have gone to the children at that time (or some deed of variation or buy out done to keep the property solely for the mother).

I have no idea how you'd sort that out now but don'; think it's purely self-interest that is causing the solicitor to say you need professional guidance...

Although that is technically correct I would not get too hung up on that point as it would only cause an issue if it impacts IHT which in this case it won’t.

All the OP needs is to obtain LoA for their father’s estate. As the death was 10 years ago they are also going to have to submit an IHT return using IHT205 which needs to be completed before applying for LoA. This is not that complicated and they should not need professional help to do it. 

Land_Registry

Blackbird94 said:

My brother, sister and I are currently in the process of selling our late mothers house who died in 2020. Probate was dealt with in 2022 and my brother is the Administrator/Executor.

The solicitor handling the sale has received all doc's etc but after seeing that the property deeds only name my father (who died in 2013)  and my father also leaving no will has stated that we will now need to provide a retrospective probate 'Letters of Administration'  on behalf of our mother for the sale to proceed even though my brother already has 'ownership' as it were of the property.

They were married in 1964
House was bought in 1966

We of course thought that ownership of the house had simply passed over to the spouse. Does anyone have previous experience/knowledge of this?

Also I dealt with my mothers probate in 2022, it wasn't really that hard but the solicitor has recommended that we have 'legal help' with obtaining probate for my mother due to the 'complexity' not to mention the large amount of money they will charge for doing so!

Again has anyone already been in this situation and dealt with a retrospective probate similar to this?

Thanks in advance.

Whilst people can inherit a property the legal ownership does not automatically or simply change as a result. So the legal advice you have been given is correct.
It was not unusual for the male spouse to be registered as the sole legal owner in the 6os/70s. So if Dad was registered as such then on his death probate (recorded will) or letters of administration (no recorded will) would be required for his executor/administrator to then deal with the property. In this case, if Mum was his beneficiary/inheritor, then the administrator should have transferred (form AS1) the property to her and updated the land register.
That doesn't always happen as some will have had the same thought process as here in that 'I've inherited and I still live here, so I'm now the owner' - half right as until the legal ownership is changed the property remains part of your late Dad's estate.
So to now deal with the property and remove it from Dad's estate you now need letters of administration. The administrator can then deal with the property as appropriate