Applying for Probate

Keep_pedalling

There is nothing stopping you applying for probate now.

The fact that the estate was of a low value makes the provision of a discretionary trust unbelievable. Had this been done by a solicitor there would have been the option of legal address, but anyone can set up as a will writer with zero qualifications and this person was a particularly unqualified and ignorant person.

Bering in mind that all the expenses associated with the trust and estate come from the estate not your father’s savings, after funeral and legal cost will be left to put in the DT?

kestrelforaknave

@Keep_pedalling I know, I've looked into it and as far as I can tell the person that wrote the will was working under a subsidiary name for a financial services company (the ones that had my parents wills) but they are claiming ignorance to ever knowing this person or the company name he worked under. Once it's all done I'll look into naming and shaming in the hope that no one else (or at the very least less people) will end up in the same situation we find ourselves in. Thanks.

poseidon1

Despite the complexity of the will itself, since you say your mother's estate ( including 50% of the house) is below £325k , then the estate qualifies as an Excepted estate where no IHT is payable and you will therefore have no requirement to complete IHT form 400 - this is explained in the link below

https://www.gov.uk/valuing-estate-of-someone-who-died/check-type-of-estate

I note you have already downloaded probate form PA1P to get an idea of the questions you have to deal with in making the application. However, you will see from the form that prior to making an application you have to calculate the value of the estate for IHT purposes to demonstrate no tax is due. This involves utilising HMRC's interactive calculator link below -

https://www.gov.uk/valuing-estate-of-someone-who-died/estimate-estate-value

In completing the calculator, since the bulk of your mother's estate passes to the exempt life interest trust for your father, the remaining estate that passes to the nil rate band discretionary trust (ie her cash, ISAs etc) will represent the net taxable estate which you indicate will be a very modest 4 or 5 figure number. Armed with the relevant gross and net values of the estate you then proceed with the application.

Worth pointing out that you will obtain probate more quickly if you use the online process in the link below rather than submitting paper form PA1P. Perhaps the form could represent your intial 'dry run' template prior to making formal application online?

https://www.gov.uk/applying-for-probate/apply-for-probate

Once you have obtained probate, you can then return to the solicitor to prepare the relevant deeds for you to wind up the nil rate band discretionary trust in your father's favour, and vary his life interest trust so that it terminates entirely on his death with no new discretionary trust overhang.

The deed getting rid of the nil rate band trust is straightforward enough, but variation of the life interest trust will require very careful consideration and drafting of the relevant deed.

In the meantime you have already stated your father has been able to obtain most if not all of your mother's cash accounts.

Can I suggest he places those monies in an earmarked non interest bearing account, pending the deed to get rid of the nil rate band trust. The reason for this is the estate is liable for income tax at 20% on interest in excess of £500, whilst the trust faces a possible 45% income tax exposure at the point it is deemed to come into exsistence. Therefore to avoid you having to make any HMRC estate/trust tax compliance disclosures, its best your mother's cash remains non income producing pending the solicitor addressing the matter.

Keep_pedalling

https://forums.moneysavingexpert.com/discussion/comment/82037976#Comment_82037976

That last bit should read how much will be left after funeral and legal costs?

kestrelforaknave

@poseidon1 This is wonderful, thank you again for all your help.

RipleyG

@kestrelforaknave I'm unable to add anything useful, but wanted to add a note of support (I was pointed to your post by Poseidon1 after finding myself in a similar situation).

It seems the solicitor you recently engaged is competent. If you are willing to share their details (by PM rather than publicly if you prefer) I would love to know if they are anywhere close to me!