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  • FIRST POST
    • readwrite
    • By readwrite 23rd Mar 18, 5:12 PM
    • 7Posts
    • 2Thanks
    readwrite
    Council Tax Liability after Probate
    • #1
    • 23rd Mar 18, 5:12 PM
    Council Tax Liability after Probate 23rd Mar 18 at 5:12 PM
    Hi,

    My mother died in october last year and left her assets including property, cash and a few shares to me and my sister.

    Following death we informed the council and council tax payment was stopped and they said there was an over payment and this would be refunded once probabte had been granted.

    Probate was granted at the end of January and copy sent to the council who has sent a refund to the solicitor but has also sent a bill to us for Council tax from probate date to end of March.

    My understanding from the councils website (Cornwall County Council) and the government website is that we were exempt (class F) from paying council tax for up to 6 months after probate date ?

    I'm trying to understand why we have been charged and where the liability to pay stands ??

    The property has been empty since her death, although I did stay there briefly while she was in a hospice and until a week after her funeral. Council said this was fine as long as it wasn't long term. House was cleared and placed on the market and a sale recently agreed.

    The WILL doesn't leave the property to anyone it just says:-

    'I GIVE all my property not otherwise disposed of by this my Will or by any Codicil hereto UNTO my trustees UPON TRUST:
    1. To pay my funeral and testamentary expenses inhertitance tax debits and legacies and
    2. Divide the residue (my Residuary Estate) equally among my children .....

    I'm assuming property in this case means ALL her assets.

    Myself and my sister are joint Executors and trustee's of the WILL

    Does the property belong to the 'estate' until sold and therefore Class F exemption applies in the case ?

    Are Cornwall County Council pulling at fast one ?

    Thanks
Page 1
    • Margot123
    • By Margot123 23rd Mar 18, 5:20 PM
    • 804 Posts
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    Margot123
    • #2
    • 23rd Mar 18, 5:20 PM
    • #2
    • 23rd Mar 18, 5:20 PM
    Might be an idea to give the Council Tax officer a ring, just to clarify the situation.
    It could be a mistake, or Council policy, or something else. They hold the answer.

    Councils vary, so it would be unwise to accept information relating to a different Council if anyone offers advice.
    • Keep pedalling
    • By Keep pedalling 23rd Mar 18, 5:28 PM
    • 4,991 Posts
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    Keep pedalling
    • #3
    • 23rd Mar 18, 5:28 PM
    • #3
    • 23rd Mar 18, 5:28 PM
    If the property has been transferred to you and your sister the exemption does not apply, otherwise it should.
    • CIS
    • By CIS 23rd Mar 18, 5:55 PM
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    CIS
    • #4
    • 23rd Mar 18, 5:55 PM
    • #4
    • 23rd Mar 18, 5:55 PM
    Councils vary, so it would be unwise to accept information relating to a different Council if anyone offers advice.
    The same legislation applies to all, each local authority should be following the same.

    The Class F exemption only applies where there is no other owner of the property, the 6 month post probate can only apply where the estate still holds the property.

    It appears either that the council have made a mistake or they are happy in their minds that the estate has passed the property on (who is shown on the land registry as owner ?). In the first instance the only way is to contact them and ask. If they still hold firm that the property is no longer in the ownership of the estate then the only way forward for a binding decision would be to apply to a valuation tribunal.
    I no longer work in Council Tax Recovery but instead work as a self employed Council Tax specialist. My views are my own reading of the law and you should always check with the local authority in question.
    • Tom99
    • By Tom99 23rd Mar 18, 5:58 PM
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    Tom99
    • #5
    • 23rd Mar 18, 5:58 PM
    • #5
    • 23rd Mar 18, 5:58 PM
    Class F say 0-6 months and also 'up to' 6 months. Maybe the Council think they have discretion as to how much to offer?
    • fatbelly
    • By fatbelly 23rd Mar 18, 6:14 PM
    • 12,242 Posts
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    fatbelly
    • #6
    • 23rd Mar 18, 6:14 PM
    • #6
    • 23rd Mar 18, 6:14 PM
    'A dwelling which has remained unoccupied since the date of death of the deceased person who was formally liable as owner, leaseholder or tenant, and for up to 6 months after grant of probate, and no person is a qualifying person for the property in any other capacity other than as executor of the estate.'

    The phrase 'up to' means 0 to six months.

    It looks like Cornwall goes to the smaller end of that scale, which does not surprise me. There's a steady flow of stories from Cornwall about their meanness towards residents and willingness to spend money on jollies to the south of France.

    Would be delighted to be proved wrong.
    • CIS
    • By CIS 23rd Mar 18, 6:25 PM
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    CIS
    • #7
    • 23rd Mar 18, 6:25 PM
    • #7
    • 23rd Mar 18, 6:25 PM
    Class F say 0-6 months and also 'up to' 6 months. Maybe the Council think they have discretion as to how much to offer?
    Originally posted by Tom99
    No, it is not a discretionary power. The '0-6' and 'up-to' just cover the fact that the post probate Class F is capped at 6 months but will cease earlier than that if the qualifying criteria are no longer met.

    The Council Tax (exempt dwellings) order 1992 (as amended) covers the situation. To summarise, the Class F (once probate has been awarded) is time limited in it's award by way of the following text:

    in a case where a grant of probate or letters of administration has been made, if less than six months have elapsed since the date of the grant;
    The earlier sections of the exemption give the actual criteria which must be met.
    Last edited by CIS; 23-03-2018 at 6:30 PM.
    I no longer work in Council Tax Recovery but instead work as a self employed Council Tax specialist. My views are my own reading of the law and you should always check with the local authority in question.
    • Tom99
    • By Tom99 23rd Mar 18, 6:47 PM
    • 2,068 Posts
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    Tom99
    • #8
    • 23rd Mar 18, 6:47 PM
    • #8
    • 23rd Mar 18, 6:47 PM
    No, it is not a discretionary power. The '0-6' and 'up-to' just cover the fact that the post probate Class F is capped at 6 months but will cease earlier than that if the qualifying criteria are no longer met.

    The Council Tax (exempt dwellings) order 1992 (as amended) covers the situation. To summarise, the Class F (once probate has been awarded) is time limited in it's award by way of the following text:

    The earlier sections of the exemption give the actual criteria which must be met.
    Originally posted by CIS
    So the Council are wrong and cannot charge until July or an earlier sale?
    • CIS
    • By CIS 23rd Mar 18, 6:56 PM
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    CIS
    • #9
    • 23rd Mar 18, 6:56 PM
    • #9
    • 23rd Mar 18, 6:56 PM
    So the Council are wrong and cannot charge until July or an earlier sale?
    Originally posted by Tom99
    If the property is still unoccupied and held by the estate then yes but as to why they've made the current decision we don't know - is it an error or have they found some information they believe shows otherwise ?

    Although the previous posts have all worked around the owner aspect there are some other aspects which could be relevant,but obviously unless we know why the council have made their decision it's hard to tell. It could, for example, be down to the council thinking the property has become occupied.
    I no longer work in Council Tax Recovery but instead work as a self employed Council Tax specialist. My views are my own reading of the law and you should always check with the local authority in question.
    • readwrite
    • By readwrite 23rd Mar 18, 9:06 PM
    • 7 Posts
    • 2 Thanks
    readwrite
    Thanks all for your replies.

    The property is definately not owned by me or my sister, we've not had it transferred into our names with the Land Registry, its still registered to my mother.

    Property has also been empty since I left a week after the funeral. I live in another part of the country.

    All we've done is to de-personalise the house and put it on the market via an estate agent and now instructed a solicitor to put the sale through.

    From what I've read, it all depends who they consider the 'owner' to be.

    So far my sister has been dealing with the sale and the council. When I get the bill through I'll give them a ring and ask them on what grounds they are refusing class F: exemption.

    Any other questions I should ask ?

    Thanks again
    • CIS
    • By CIS 24th Mar 18, 8:21 AM
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    CIS
    For now the only question you need to ask is why the Class F is not in place. Until you get an answer with that you are stuck with moving forward.
    I no longer work in Council Tax Recovery but instead work as a self employed Council Tax specialist. My views are my own reading of the law and you should always check with the local authority in question.
    • SevenOfNine
    • By SevenOfNine 24th Mar 18, 8:32 AM
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    SevenOfNine
    It's possible the waters got muddied when you stayed in the house for a short time, whoever said that would be fine may not have been giving the best or most accurate advice. I hope you know who you spoke to, definitely pays for everything done by 'phone to know who, date, time, it can add weight to the words "I was told".

    I'd probably ask why they haven't implemented the class F exemption as opposed to why they are refusing it. If they still insist you must pay, personally I'd approach the councillor for the area your mother lived, use the surgery that they run if you or sister can get there, or email as I think it's best in person or writing.

    Make the councillor obtain justification for the decision. If all else fails follow it through with a formal complaint - if only to inconvenience the department.

    Our own LA couldn't have been more helpful or understanding, very kind letters sent to us. It was free (refund) until LoA obtained, then 6 months class F.

    This time around there's been very little communication except to say a refund is owed & zero charge, but no condolences or requests to be told when probate is granted like last time. Same LA, different team/person dealing with it.
    Seen it all, done it all, can't remember most of it.
    • readwrite
    • By readwrite 17th Apr 18, 1:20 PM
    • 7 Posts
    • 2 Thanks
    readwrite
    So finally received a response back from the council:-




    'This exemption applies to any unoccupied property (furnished or unfurnished) where the only person who can be held liable for the council tax has died so liability falls to the executor/administrator. The exemption will end when someone else can be held liable or 6 months from the date probate is granted or administration of letters is complete.

    From the date of probate the property is put in the name of the beneficiaries. This applies when there are no circumstances which prevent the beneficiaries using the property for their own use. They may have the property up for sale but this is because they have chosen to do so not because the property needs to be sold to settle any debts from the estate. This means we regard them as being liable in their own right.

    If probate has been granted but the estate is still not settled then the executors should remain liable. For example, the estate could be insolvent then it would be unreasonable to hold the beneficiaries liable or the property could need to be sold to settle the estate overall so the executors should continue to be liable.

    From the information we have received, we have made yourself liable from the date of probate and I hope the above information explains why. Should you require any further information, then feel free to contact me'




    What do you think ? Worth an appeal to Valuation Tribunal ?
    • Tom99
    • By Tom99 17th Apr 18, 1:39 PM
    • 2,068 Posts
    • 1,392 Thanks
    Tom99
    So finally received a response back from the council:-




    'This exemption applies to any unoccupied property (furnished or unfurnished) where the only person who can be held liable for the council tax has died so liability falls to the executor/administrator. The exemption will end when someone else can be held liable or 6 months from the date probate is granted or administration of letters is complete.

    From the date of probate the property is put in the name of the beneficiaries. This applies when there are no circumstances which prevent the beneficiaries using the property for their own use. They may have the property up for sale but this is because they have chosen to do so not because the property needs to be sold to settle any debts from the estate. This means we regard them as being liable in their own right.

    If probate has been granted but the estate is still not settled then the executors should remain liable. For example, the estate could be insolvent then it would be unreasonable to hold the beneficiaries liable or the property could need to be sold to settle the estate overall so the executors should continue to be liable.

    From the information we have received, we have made yourself liable from the date of probate and I hope the above information explains why. Should you require any further information, then feel free to contact me'

    What do you think ? Worth an appeal to Valuation Tribunal ?
    Originally posted by readwrite
    That does not make a lot of sense. They say you get 6 mths from probate but then go on to say no you don't because its the executor or the beneficiaries who are liable ie there are no circumstances in which you would get 6 mths.
    They are wrong about the beneficiaries being able to use the property for their own use, that does not occur unless the property is formally transferred to them.
    • Flugelhorn
    • By Flugelhorn 17th Apr 18, 1:41 PM
    • 755 Posts
    • 925 Thanks
    Flugelhorn
    Goodness - I am in the same boat, probate through a couple of weeks ago, off to see estate agents and get the house ready for sale next week. I assumed that I would have had 6 months before paying CT. But reading this sounds like I won't.

    I don't feel that "This applies when there are no circumstances which prevent the beneficiaries using the property for their own use" is particularly fair - house is wrong end of the country for me, have a perfectly good house near where I work and wouldn't have chosen to have second house. Hope sale goes through quickly.

    Edit: just reading the bit about the property being transferred - I am not transferring the names on the property. Many people will be selling i to divide the proceeds and never all owing the property
    • CIS
    • By CIS 17th Apr 18, 3:14 PM
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    CIS
    "This applies when there are no circumstances which prevent the beneficiaries using the property for their own use"
    That particular phrase is not found in legislation and so is a subjective determination by the council. To be fair to the council the actual legislation is very poorly worded. There is no delegated powers to alter the Class F exemption on a local level.

    I've looked through a good few cases on the Class F and everyone comes up with a slightly different determination. As yet I've not had to construct a full tribunal argument based on it for anyone so I can't speak for using a particular argument.

    A lot of confusion comes from what happens at probate - which is effectively just legal permission to distribute and finalise the estate - but for council tax purposes we could do with a high court case specifically on the council tax side. Most argument come over joint ownership rather than inheritance and ownership that way.

    Unless and until there is something which transfer ownership of the property, for council tax purposes, the estate is liable by way executor for whatever charge would fall due. The catch is the potential for 'beneficial ownership' even where the estate has not been dealt with - for example read the decision on this case - http://info.valuation-tribunals.gov.uk/decision_document.asp?appeal=/decision_documents/documents/CT_England/1540M208374037C.htm&Decision=liability
    and
    http://info.valuation-tribunals.gov.uk/decision_document.asp?appeal=/decision_documents/documents/CT_England/4705M171273254C.htm&Decision=liability
    Last edited by CIS; 25-04-2018 at 2:28 PM.
    I no longer work in Council Tax Recovery but instead work as a self employed Council Tax specialist. My views are my own reading of the law and you should always check with the local authority in question.
    • SevenOfNine
    • By SevenOfNine 17th Apr 18, 3:28 PM
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    SevenOfNine
    Goodness - I am in the same boat, probate through a couple of weeks ago, off to see estate agents and get the house ready for sale next week. I assumed that I would have had 6 months before paying CT. But reading this sounds like I won't.

    I don't feel that "This applies when there are no circumstances which prevent the beneficiaries using the property for their own use" is particularly fair - house is wrong end of the country for me, have a perfectly good house near where I work and wouldn't have chosen to have second house. Hope sale goes through quickly.

    Edit: just reading the bit about the property being transferred - I am not transferring the names on the property. Many people will be selling i to divide the proceeds and never all owing the property
    Originally posted by Flugelhorn
    I wouldn't panic Flugelhorn. We put FiL's house (local to us & 3 of the 4 other beneficiaries) on the market 'subject to probate', buyers found, the house remains in FiL's name. No council tax charged from DoD.

    Told the council probate grant dated 26 March & I expected the Class F exemption to commence. It has, no problem, no argument, no questions asked. Exactly like 26 months ago when we did this before.

    There is a difference in OP's case, she lived in the property while her mum was in a hospice & for 1 week after she'd died (don't know how long in total). It doesn't take much for a local authority to try to weasel out of giving anyone something for nothing!

    Personally I'd appeal, nothing ventured & all that. Good luck OP.
    Seen it all, done it all, can't remember most of it.
    • CIS
    • By CIS 17th Apr 18, 3:42 PM
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    CIS
    The occupation of the property after death doesn't in itself always affect the situation - up to a period of 6 weeks occupation can occur without breaking the Class F (the aim is allow family to use the property whilst clearing it etc, "
    in considering whether a dwelling has been unoccupied for any period, any one period, not exceeding six weeks, during which it was occupied shall be disregarded"). If the period came to more than 6 weeks the Class F would stop but there would be nothing to stop the Class F resuming once they had left, assuming the relevant criteria were met (unlike some exemptions which cannot be resumed)
    Last edited by CIS; 17-04-2018 at 6:20 PM.
    I no longer work in Council Tax Recovery but instead work as a self employed Council Tax specialist. My views are my own reading of the law and you should always check with the local authority in question.
    • SevenOfNine
    • By SevenOfNine 17th Apr 18, 7:12 PM
    • 1,275 Posts
    • 1,237 Thanks
    SevenOfNine
    CiS - would the occupation beforehand make any difference? OP said she stayed in the home while mum was in the hospice (but hasn't said for how long).
    Seen it all, done it all, can't remember most of it.
    • CIS
    • By CIS 18th Apr 18, 7:49 AM
    • 10,480 Posts
    • 6,053 Thanks
    CIS
    CiS - would the occupation beforehand make any difference? OP said she stayed in the home while mum was in the hospice (but hasn't said for how long).
    Originally posted by SevenOfNine
    The order for the Class F exemption provide only for after death, where they allow the property to be occupied for up to 6 weeks. There's nothing to say that this can't also be a person who was living in the property prior to the death.

    For CTax purposes 'occupied' means a property in which someone lives - 'lives' is usually taken at it's most basic sense. In CTax legislation 'resident' would be a person who has their 'sole or main residence' in the building but that also would fall under 'occupied' for this purpose - the legislation intentionally lowers the threshold from a 'resident' to an 'occupier' to widen the scope.
    Last edited by CIS; 18-04-2018 at 7:52 AM.
    I no longer work in Council Tax Recovery but instead work as a self employed Council Tax specialist. My views are my own reading of the law and you should always check with the local authority in question.
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