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Could Probate Become Digital?

If you have been keeping up with the news lately, and especially if you are a business owner, you won’t have failed to notice that there is a new idea for ‘making tax digital’. It is the latest government initiative to save time, money, and hopefully effort when it comes to filling in VAT and tax returns.

Could the same be about to happen with probate?

Going digital has its advantages, no matter what you are doing digitally. It is faster, there is less paperwork involved, there is less room for error, and you can still ask for help and advice whenever you need it. So when it comes to probate, going digital could speed up the traditionally very slow process, even when experts such as IWC Probate Services are involved to help. This means people can become frustrated, tired, arguments can break out, and for executors it can take a real toll, especially if they also have to work a full time job and have a family to look after.

The quicker it all takes the better.

There is a new online program that has been designed to make probate faster by encouraging people to do it all online. It isn’t mandatory, and bugs are still being ironed out – it is a beta version – but it should help to clear the backlog. It may even mean that those using the traditional route will have their cases dealt with more quickly because the automated service will be taking on what would traditionally have needed human intervention.

This new site was the brainchild of the probate service, a group of solicitors, and HM Courts and Tribunals Service who all agree that the time probate takes far too long and that there is no need for this. Every year there are approximately 280,000 new probate cases, and if the majority of these could be done online it would free up a lot of time and make the process so much smoother.

Tony Crocker
What Happens To Land When A Landowner Dies?

Everyone has a fair idea if what happens when a property owner dies, and to whom the property then belongs to. However, what about land? There are many landowners in the UK; is there anything special they need to do regarding their land for when they pass away?

In essence, the landowner themselves don’t have to do anything as such, although it is best if they write a will. The executor or administrator of the estate, however, will need to do some additional work when land is involved. The first thing they will need to do is ascertain exactly how much land is in question; this can usually be done from the deeds. Where to find those deeds is another matter, but they will most often be with a solicitor or stored at a bank. Alternatively they may be kept with the testator’s paperwork, and will need to be found. It could be that the will is registered with a company such as Willfinda, in which case the deeds may be with it.

It should then be determined whether or not there is a mortgage on the land. If so, the mortgage provider may actually have the deeds as they are used as security when there is a mortgage involved.

The Land Registry need to be informed of the death as there will be a change of ownership regarding the land. It is far easier to do this if you have sight of the deeds.

For ease and time’s sake, it is best if the executor becomes the registered owner of the land throughout the probate period. Ownership can then be transferred (using something known as an ‘assent’) to the beneficiary once probate has been completed. There will be times when the beneficiary is able to take ownership immediately, in which case the executor need not apply for the land.

The executor must complete specific forms as well. The first is the AP1, and if they are not taking ownership of the land, the AS1 should also be completed – this is if they are registering a change of ownership on behalf of a beneficiary. If there is a mortgage on the land, the AS2 will also need to be completed.

Once the Grant of Probate is received, this will need to be sent to the Land Registry

Tony Crocker
The Cost of Dying Intestate

You may think that dying intestate – that is, dying without having made a will – costs nothing. After all, isn’t it a will that you need to pay for, and therefore not having one must surely save money?

Although technically this is the case, the cost of writing a will is minuscule compared to the cost that will be left to your loved ones and friends if you don’t make one and die intestate. In fact, if you visit IWC Probate Services for advice, you may well discover that writing a will is not as expensive as you first thought.

But why is dying intestate an expense?

When some dies without writing a will, a solicitor will need to deal with the issue of probate. This can take a long time since the solicitor won’t be dealing with just one person’s estate but many, and will need to work on them on a first come, first served basis. They will also need to be paid for their time, which means that the estate will be reduced in order to satisfy the solicitor’s bill once probate is completed.

And it’s not just a financial cost either; emotionally, if you were to die intestate your friends and family would be much worse off. They would have to deal with the demands from your creditors, from utilities companies, from the bank, explaining time and again that their loved one has died. This will be painful every time they have to do it. Sometimes they will even need to pay out of their own pockets just to make the creditors take a step back. They might be able to recoup those costs, but then again, they might not.

The mortgage is probably the biggest issue that those left behind will need to deal with. Mortgage companies are very particular about who they talk to, and if anyone wants to change things after someone has died they will need to be an administrator for the estate (this will require a grant of administration so that someone living can act on the behalf of someone who has died). The problem is that without a will this can take a long time, and during that time there might be penalties incurred for late payment.

As you can see, writing a will is must less costly than leaving everything to chance.

Tony Crocker
Is Probate Required If There Is A Surviving Spouse?

Probate is the process of administering a deceased person’s estate. A grant of probate needs to be applied for, as this will confirm the executor’s rights (or administrator’s rights if there is no will) when it comes to distributing elements of the estate.

Many people think that probate is something that is always needed, no matter what the circumstances of someone’s death, or their life. However, that isn’t so – in some cases probate is not required at all. When there is a surviving spouse (or civil partner) then often probate is not needed, although this will depend on other factors as well. It isn’t that there are special exemptions for probate when there is a spouse or partner, it’s just that there are usually very few assets that are held solely in the deceased person’s name; most will be joint. When this is the case, those assets will usually be passed straight to the surviving spouse and they will become the sole owner.

You will need to apply for a grant of probate even if there is a surviving partner or spouse if there are significant assets that are held in the deceased person’s name only. This might be a property, or savings of high value, or perhaps stocks and shares and so on.

It is always wise to seek guidance and advice, particularly when you are the executor or administrator of an estate. There will be serious legal and financial penalties if probate is not applied for when it should be, and therefore gaining some expert insight is advised.

Even if probate is not required, it is important for the executor or administrator to inform any institutions where the deceased held any form of account so that the assets can be transferred to the surviving spouse, and the account closed down. These kinds of institutions and assets include pensions, utility companies, phone companies, broadband and TV providers, and subscriptions including Netflix, Amazon, and the professional arm of LinkedIn.

Tony Crocker
Family Heirlooms

Not every family has beautiful (or not so beautiful as the case may be) family heirlooms to consider, but if yours does then it is important that they are accounted for when the owner wants to make a will. These items may not have much (if any) financial value, but their emotional value is priceless and the stories behind then about how owned them and how they came to be part of the family can be utterly fascinating.

It can be a common problem when two or more family members believe that they are entitled to the family heirloom and there is no provision for it in the will or if no one can find a will – rifts can be formed and big arguments can happen at an already difficult time. Or it could be that someone was promised the item but that the wish was never written down and now there is only their word for it.

Including the heirloom specifically in a will will stop all of these problems, although there may still be some in-fighting from those who wanted the item or expected it. Therefore, as well as including the heirloom in your will and naming it specifically you should also talk to your family about who you are intending to give it to, and why. Make sure they know before your will is executed so that they won’t have a big surprise when they are also grieving as this can make things much worse. If you do not make a will and you have no family then the services of heir hunters may also be required.

Remember, however, that if the item is sold or given away then your will should be updated to reflect this otherwise many wasted hours (or days, weeks, even months) could be spent searching for something mentioned within your will when it no longer exists, or at least is no longer with any family members. And if you do give it away to a family member before your death, make a note of that – otherwise, if your will says something different (or nothing at all) they may have to give it back for it to be given to the ‘rightful’ heir. 

Tony Crocker
What If You Are Renting When You Die?

Making a Will

Many wills and will writing companies tend to focus on those who own their own home. This does make sense to an extent; after all, when you die there is a lot that needs to be considered if you own a property either in part or entirely. However, what is the case if you are renting when you pass away?

Well although it may not sound particularly fair, you could well still be expected to pay your rent. The money will come out of your estate, and if your rental agreement states you need to give 30 days’ notice, then the landlord is well within their rights to take the money.

 

Duties of an Executor

This is one important case where the duties of an executor or administrator of an estate will include looking at the terms of the rental agreement and how much money has gone out to pay for the rent. Some might be owed to the landlord, but it could also be equally possible that, if the rent is paid in advance, there might be a rebate due. If there are rent arrears, these will need to be included in the estate as debts and the money will need to come out of whatever it available, if possible.

If the deceased as a council tenant then the process will be slightly different. The executor or administrator will need to write to the local housing office and let them know about the death. Within the letter they will need to include a copy of the death certificate as evidence. It may be possible that a spouse or partner, or another relative, can take over the tenancy, but they must have lived in the property for at least a year. If there were already joint tenants then the surviving tenant will take over the entire tenancy, exactly as they would if they had jointly owned the property. 

How Long Does It Take To Get Letters Of Administration?

Sometimes, when someone dies, it is not probate that is required, but instead it is letters of administration that need to be applied for. Whoever applies for this is called the administrator, and not the executor. If there is no will, if there is a will but it is not valid, if there are no executors named in the will, or if there are executors named but they are unable to or do not wish to take on the role, then an administrator will need to be appointed, and letters of administration applied for. 

Not just anyone can take up the mantle of administrator of an estate. Just like with the intestacy rules, there is a set order of priority for who can take on the task of applying for letters of administration. The first person to be considered will be the spouse or civil partner of the deceased (an unmarried partner will usually not be able to act as administrator). After that, in order, will be the children of the deceased (in age order), grandchildren, parents, siblings, nephews and nieces, and other relatives.

Once the letters of administration have been applied for, it should take between three and five weeks to receive the grant and then be able to execute the will (assuming there is one). However, it can take longer is the estate is more complicated, if there is inheritance tax to pay, or if there are any errors on the forms.

Resealing probate in Australia

Resealing probate in Australia

When a deceased person owns assets in Australia, it can be an onerous task to deal with the estate. This is because the executor of the Will has to either transfer assets to the beneficiary, or to be able to sell them. However, resealing probate in Australia can be less problematic through a process known as resealing probate in Australia.

A British Grant of Probate or Letters of Administration may be resealed in Australia, which is a more expeditious process than applying for new grant of probate within Australia.

Assets can include property, shares in companies, trusts or even bank accounts, and it’s likely a Grant of probate will be needed in most - but not necessarily all - cases. For example, if there is a relatively low financial value to the assets, the cost of resealing the Grant of Probate may be excessive or may not even be required. If this is the case, it may be possible to deal directly with the bank or share issuer to determine their particular requirements.

Suppose the deceased did not have a will?

The person entitled to deal with the estate should obtain a document called Grant of Letter of Administration rather than a Grant of Probate if the deceased did not have a will.

Both the Grant of Probate and Grant of Letters of Administration can are eligible to apply for a reseal of probate in Australia.

How should I go about resealing probate in Australia?

As with any legal and financial matter, half the battle is getting the correct advice. As resealing probate in Australia deals with Australian law, it may be prudent to consult an Australian lawyer. As resealing probate in Australia entails an application to the court and making public notices, an Australian lawyer - or representative - could be beneficial.

Similarly, an Australian lawyer could also help with arrangements regarding sales or transfer of assets on behalf of the beneficiaries.

In saying this, seeking legal and financial advice regarding resealing probate in Australia should start closer to home ideally. It may be worth considering for instance, if a family is moving to Australia to live and work, or already has family and assets in Australia, or for future estate planning.

 

Conclusion: resealing probate in Australia need not be difficult

Although no legal matter could ever be considered simple, resealing probate in Australia need not be a headache. In fact, with careful planning and consideration, seeking the right advice now could actually save a lot of hassle ‘further down the line’.

Resealing of probate in Australia can take several months, in some cases 9 months or so, but also different states in Australia can require different or additional processing.

So if you need to reseal probate in Australia, or perhaps are now aware of the implications of estate planning with family or assets in Australia, there’s no time like the present to start looking into it!

Tony Crocker
What is the Residence Nil Rate Band?

What is the Residence Nil Rate Band?

If you’re aware of Inheritance Tax (IHT) then you may have heard about something called Residence Nil Rate Band (RNRB) too. If you haven’t, and are wondering “what is the Residence Nil Rate Band?”,  but don’t worry - this article will help to explain.

From early 2017, a new Residence Nil Rate Band was introduced that allows  property to be passed onto descendants tax free. The new IHT RNRB is conditional on the main residence being passed down to direct descendants such as grandchildren or children.

Residence Nil Rate Band will be implemented over the course of 4 years, increasing by £25,000 each year from £100,000 in 2017-18.

Who can benefit?

The RNRB is only applicable for main residences that pass to children (including step or foster children) or direct descendants on death. In certain cases, the family home could be passed to a direct descendant and spouse.

Could descendants miss out on Residence Nil Rate Band?

It’s vital than all estates are shared in the most efficient way, otherwise some descendants may not receive the maximum benefit.  This is why it’s vital to seek independent expert advise from probate and estate planners, and possibly financial advisors.

For example, when the family home is held as joint tenants, the home will pass to the surviving owner with no IHT (because of the spouse exemption). As the spouse inherits the full unused allowance, the RNRB is not used on the first death. However, if the combined estate is greater than £2 million on the second death, both RNRB’s could be lost due to tapering.

One solution to this could be switching the property ownership into tenants in common, as then each partner’s assets will be below £2 million.

How are wills impacted?

It’s always good practice to keep wills under regular review, especially when inheritance legislative changes occur. It’s import to recognise the deceased’s wishes, and by passing the family home into a trust could increase the executor’s exposure to inheritance tax liability.

If property is passed to an individual, a deed of variation may help. If a property is passing into a discretionary trust with multiple beneficiaries, it may be difficult - or even impossible - to vary the transfer.

Conclusion: what to do about Residence Nil Rate Band

Know that you know what the Residence Nil Rate Band is, isn’t it about time to discussed your own situation with a specialist advisor?

As we’ve seen, there is a lot of complexity, as well as both benefits and risks to not addressing the matter of Inheritance Tax (IHT) and Residence Nil Rate Band in estate planning.

Wise advice and prudent estate planning can help families benefit from the legislation, and avoid financial burdens at emotionally draining times such as bereavement. It’s far better to plan ahead now for whatever may happen in the future, rather than regret not taking action.

So why not speak to your financial advisor or even better, an estate planner  experienced in probate and RNRB today?

 

Tony Crocker
Contesting A Will On The Grounds of Forgery

When the time comes for someone’s will to be executed, it pays to check everything thoroughly, just in case there might be some grounds to suspect that there is a problem with the will, and that it could be contested.

One reason for choosing to contest a will is if you think that it might be a forgery. If it can be proved that the will is forged completely, or even that the signature has been forged, then the entire will will be considered invalid.

Of course, evidence will be required in order to prove that the will is a forgery. There is a standard of proof required when disputing a will, and it is looked at on the balance of probabilities. If you can prove your case with a 50.1% probability (or more) then you will win it. However, because forgery is a type of fraud, there is a higher level of proof needed – you cannot start a case against the validity of the will if you don’t have very strong evidence.

One way to attempt to prove that a will is forged – or at least the signature is forged – is to contact a handwriting expert. They will produce a report about the validity of the will, but they will need at least 10 (more is better) signatures to compare it to. They should be original, and these can be difficult to find.

If the handwriting expert concludes that the will is valid, or that it is an inconclusive result, then it is unlikely that the claim for forgery will succeed. And even if the handwriting expert does think that there is a problem with the will, other factual evidence needs to be considered, and if anything contradicts the forgery idea, then there will probably be nice case to answer.

If, however, the court does find that a will has been forged, then the will will become invalid. If there is no earlier – valid – will, then the estate won’t be distributed via the terms of the will; it will be distributed through the intestacy rules instead. 

 

Making a Will

Making A Will In Old Age - Is Time Running Out?

For many people, the making of a will is a sombre and almost final occasion, marking the acknowledgement of your mortality and making preparations for the end of your time on the Earth. While there is no designated point in your life to make a will, instead of being at the discretion of each individual, there are both good and bad points to making a will at an earlier age and at an older one. But if you choose to make a will at an older age, towards the end of your life, what implications does this have for the things you leave behind?

When is the best time to make a will?

With regards to the question of time, there is no correct time to make a will. For many people, it will be a combination of time and circumstances, with many choosing to make a will towards middle age when they've accumulated many assets and have their own estate with which they can pass onto their children or grandchildren. For others, they will make a will at a younger age, due to perhaps having small children, to ensure a secure and stable future for them, by giving instructions on how they should be raised and by whom. It’s part of every person's life and a task that needs to be done, with some leaving it until they become old and nearing the end, with others choosing to get it secured and sorted younger. It is all dependent upon the circumstances in which you find yourself as you age and get on in life. Eventually, the time will arrive when you feel it is right to make a will.

Are there disadvantages to making a will later?

To be honest, there’s both pros and cons to making a will later on in life. The primary advantage to making a will when you’re older is that there are no longer any children who are too young to look after themselves, as most people will have grandchildren by that stage, and the thought of being able to leave them a sweet memory and a lump sum to help them improve their own lives is something most parents would do happily. As well as this, by the time they’ve reached the age where the time to make a will is short, most people will own a property and have many assets and estate to leave to their children, in comparison to those people who are only just starting out in life.

However, making a will when you’re older is sometimes a risky thing to do. The older we get as people, the more our own mortality becomes a pressing concern, with many old people dying quite suddenly despite seeming in relatively good health. With this thought in mind, the longer you leave making a will, the more risk there is of dying without one, and your estate and assets will then be contestable by the entire family for ownership. Some people, of course, may have no particular inclination as to what happens to their estates once they’ve passed, and thus find a will to be pointless.

Overall, the concept of making a will when you’ve become older is entirely dependent upon the individual, and thus cannot be dictated by any rules or regulations. It’s completely at the discretion of the person making the will, there will obviously be pros and cons to making a will earlier rather than later, but it’ll be primarily down to the current circumstances in your life as to whether or not a will is required as a matter of necessity, or can instead be delayed until you’ve reached a comfortable period in your life and can sit down to think about the details correctly.

Tony CrockerComment
New dedicated Portal launched

IWC have now launched this new dedicated portal for Letters of Administration. We aim to supply information and news with regards to Letters of Administration. Our new website will be a hub of information for the public and we aim to provide assistance for those needing help with an application for Grant of Letters Administration and also for Resealing Letter of Administration and advice with regards to application for Grants De Bonis non.  

Tony Crocker