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Answer:

The chances are they are still married, and the errant husband will inherit all or the bulk of the estate under the Rules of Intestacy - unless you can find a Will.   You can check with the local Court who have a form which can be sent up to the Central Registry in an attempt to find a divorce. You will need to provide as much information as possible to stand a chance of finding anything - and there is a fee.  Bear in mind that whoever sorts out your friends aunts estate is PERSONALLY liable if they get it wrong!  It may well be that there IS a Will - you just can't find it, which is a good spot to mention www.WillCustodian.co.uk which attempts to make sure that Wills can be found, that the executors know where they are, and as importantly, it remind people to go back to the will drafter when changes are needed.

Question:

Answer: This is not a question I can answer simply, as even if I were in full possession of ALL the facts, there is still the possibility of a dispute arising.  If your father created a life interest for your sister, it is not possible for your mother to revoke it, though their could be an argument that he was not within his rights to do so.  It is too complicated to go into all the details, I am afraid, and a well drafted Will would have made the situation clear. Perhaps you should talk to them.
Broadly, you have two choices:
1) Sort it out legally probably with solicitors advising both sides.  This will probably cost a great deal of money, as the situation appears not to be straightforward.
2) Agree the way forward with your sister, which is likely to be a far cheaper option.

Good luck!

Question: 

Answer:

I assume the estate must have been very small to be distributed with no formality.
I agree with your suggestion that the local probate Registrar be approached - it is
often just one small issue which means the whole formal legal process must be
gone through, but it is either this or write off the shareholding.
SWW Trust Corporation on 01522 687 888 (www.swwtrust.co.uk) only charge £120+ VAT per hour and may be happy just to give a little background advice - but try the Probate Registrar first!

Question: Can't find the Will

Answer:

If the Will can't be found, then the estate will have to be distributed under the Rules of Intestacy (information on the site).
UNLESS everyone is agreed and a Deed of Variation is written which means the family can decide where they would want the money to go (Intestacy Rules will often send money to older people who don't need it rather then young people who do - and give an extra lot of potential Inheritance Tax.
If the solicitor has kept his notes, you may at least have some idea what the original intention was.
If you need professional advice, contact SWW Trust Corporation on 01522 687 888 - they will have an Estate Consultant close to you.  Their fees are very modest.

Question: 

Answer from David Barnes of www.SWWTrust.co.uk 

Two issues here, getting the grant and dealing with uncles inheritance.

The latter is the easier in that they can instruct someone like Title Research to go and find him, agreeing the budget beforehand, this would be payable from the uncle's share.  They should then be able to merely reserve the fund or distribute the fund to themselves and insure against the possibility of uncle turning up at a later date.

The first problem is some thing they have got to sit down and discuss with the Probate Registry.  I cannot believe that the registry will not allow through a grant with possibly power reserved for the uncle to take a grant at a later date if he should turn up.

Hope that this helps.

(Note from APWW - we hope that the rest of the family will now get their legal planning up to date and keep it under regular review, now that they are aware of the aggravation old planning can cause!

Question: 

My father owned his own home, and lived in it with my brother until his death in 2006.  Now my brother continues to live there.  The property was wholly owned, not mortgaged, and has a current value of around £150K.  Since it is in poor condition, we want to sell it, and but a new property for my brother to live in.  This would also be around the £150K region.

I have my own property and have not lived in my father’s house since I left home about 30 years ago.  My father died intestate, but letters of administration have now been granted, though I have not yet made any changes to the ownership of the house – it continues for now to belong to my father’s estate.

If we sell the house, in the absence of any will ownership will go half to me and half to my brother.  If we each receive this money, we can then buy (jointly) a new home for my brother.  I presume that for him, he will have no capital gains tax liability since he will be simply selling his primary residence and buying a replacement.  But for me, it is not my primary residence, so will I will liable for CGT on my half of the sale proceeds ?  If I am, then the net proceeds will be insufficient to buy a new home for my brother.  So my question is, with split ownership like this, will the sale and purchase of a replacement still count as my brother moving from one primary residence to another ?

Chris

Hi Chris
There will almost certainly be no CGT to pay, as your "acquisition" price will be half the probate value i.e. £75,000, so there is very unlikely to be any Capital Gains Tax to pay (even if there is, it probably wouldn't use your annual exemption of £8,800) after just a few months.
You can therefore use the full value to buy another property.  There might be CGT to pay on that when it is sold (unless just to buy another property for your brother) but I don't think that was your concern and we are getting into areas which humble Will Writers need to consult the learned folks at the SWW Trust Corporation ....

Steve

Question: When is a Codicil not a Codicil but an expression of wish (which can be ignored)

Question: My father recently passed away in 2006.  The last will that he had made was in approximately 1986 my mother also made a will at the same time. My mother holds a copy of my fathers will and a letter from their solicitor at the time stating that it was held with them for safe keeping.  Unfortunately this firm has since been taken over and the new firm has advised that they have no record of either my fathers will or my mothers.  The solicitor who wrote the will has also since passed away.  Under the will all assets passed to my mother.  The missing original will is causing my mother a lot of heartache.  My mother has been advised that if all my fathers children sign a declaration agreeing that all assets should be passed to my mother then we can then apply for a grant of probate.  However my father has another child (out of wedlock and not with my mother) of whom he has not spoken too for a number of years.  He had no part in her upbringing and did not wish for her to benefit from his estate. My mother does not know what to do for the best.  Will the copy will be void if my half sister disagrees?  Also how can a will be lost like this surely someone should hold responsibility for this matter?

Answer: There is a presumption that a Will has been revoked if it is not found at death, but in this case it would seem there is more likelihood that it has just been lost by the solicitors!  Our own storage facility via Will Custodian Ltd is much better organised than this and keeps in touch with clients every year. I would also say that a 20 year old Will may be quite inappropriate and that there may be potential tax savings of up to £114,000 available if it is re-written by Instrument of Variation - which is not to say this would be easy.

You case is potentially complex, but may prove to be quite straightforward.
If you wish to handle it yourself, contact the local Probate Registry and make an appointment to take all the papers in and ask their advice - it is possible they would .  If you are happy to pay someone to take the burden from you, contact David Barnes of the SWW Trust Corporation on 01273 722574 (this is his direct number) and he will be happy to sort it out.

With regard to the other child, their could potentially be a claim from that quarter, especially if they had been receiving some maintenance.

I do hope this will enable you to move forward!

Question: My father died last year, my brother got probate ( he was the executor), he says I wasn't left anything in the will, I have since found out that I was! Half the estate in fact. How do I go about getting my share?

There are three steps you should take:

1) Obtain a copy of the Will - instructions are at http://www.hmcourts-service.gov.uk/cms/1226.htm 
Bear in mind that it is possible the Will you were to benefit under has been replaced by a new one.  You might argue that such a Will was prepared under duress or whilst your father was not mentally competent to make a Will.

2) Ask your brother to resolve the issue and if not:

3) Find a good litigation and probate solicitor to advise you. I would suggest writing to firms asking them to confirm that they have expertise in litigation on Probate matters, and if not to refer you to someone who has. Do NOT just appoint a general practice solicitor who may have expertise in neither area. All solicitors are most definitely not equal as you will need a firm with proper expertise in BOTH of these areas.  They may well advise you to report the matter to the Police as a theft, as well as taking action through the Courts to recover what is rightfully yours.

HELP!

My Father died in August 2006, and after an exhaustive search no will was found, this lead to myself the eldest of 3 brothers to apply for a letter of administration, this was granted and the money from the estate approximately £183,000 has started to filter into an account set up in my name (with all of our agreement).

However a will has now materialised naming my youngest brother (he is my half brother we share the same Father) who is 18 as the sole beneficiary of the estate, in the event of his Mother’s death, his mother is alive and well but divorced from my Father in 2001, the executors of the estate are named in the will as my Fathers ex wife, in the event of her death this duty then falls on my Fathers ex Brother in law.

The will states that should his wife die that all of his estate will be passed to my younger brother and held in trust by the executors until the age of 21.

Is this will still valid after my Fathers divorce?

My younger brother wishes the estate to still be shared 3 ways can this happen now or do we need to wait until he is 21? 

Answer: Ouch!
The effect of divorce is NOT to invalidate the Will, but to remove the name of the ex-spouse from the Will.  Without seeing the Will I have no idea what effect that will have.
Basically you MUST go back and advise the Probate Registrar AT ONCE.
You appear to no longer have any legal authority to act; that will, once probate has been properly granted, belong to the new executors.
Contact the Court at once and do what they suggest.
Your brother can, with Court approval, take his inheritance early and share it out, but this would be a gift from him for inheritance tax purposes, and would be included in his estate for tax purposes if he died within 7 years.  Probably not a problem, but it is also possible to do an Instrument of Variation to amend the Will which would be more expensive, but get round the problem.
If the new executors need any advice, they are welcome to contact me, or to instruct our Probate service, SWW Trust Corporation on 01522 687888 option 2.

Question: what do you think of the proposed changes to Enduring Powers of Attorney and Advance Medical Directives?

Broadly I welcome putting Advance Medical Directives on a formal footing.  Few people understand how to write one for full benefit and the new forms, though lengthy, will at least make this clearer.

I do have major concerns about the length of the forms, the cost of registration and the fact that the family will not necessarily have to be notified.  This latter is most worrying and seems to me to be an entirely disproportionate response to the occasional case where people do not want their families notified for entirely sound reasons.  Preventing a small amount of abuse may result in a whole industry of abuse.  Let us hope my representations have been heard!

Question: Writing a Will online is a bit cheaper than using your service.  Why should we spend the extra?

You can get a free last will and testament form by subscribing to our newsletter (below) if you are really hard up.  We certainly appreciate that not everyone can afford even our modest fees for writing a will. But here are a few reasons for finding the extra few pounds:

        you may be eligible to save £114,000 of more in inheritance tax for your beneficiaries. Or   

        you could save the local council selling your home under the CRAG Regulations for Care     

        Fees.

Your personal circumstances, tax or the law will change in the future - where would you get advice from?  We can solve that one too.

Do you know what is and is not included in your estate for the purpose of your Last Will?  Will you accidentally disinherit children, friends or relatives.

We make the process simple, but we can only do that by being experts in our small area of the Law.  Don't do it "on the cheap" - others will live to regret the few pounds you saved.  Click HERE to find out how much our economical but professional service costs.

Question: How will the new rules allowing Local Authorities to commander empty homes impact on my mums house - she has just died?

Recent news articles about the new powers given to local authorities to repossess empty properties have highlighted the importance of dealing with a deceased estate as swiftly and professionally as possible.

Leaving a deceased’s property empty for more than 6 months after Probate has been granted can lead to problems and potential claims against the executors or administrators.

A man in Luton recently received a letter from Luton Borough Council just 5 months after his Mother died, asking his intentions regarding his late Mother’s property and warning that the council could repossess the property. This caused obvious distress to the man who was struggling to deal with all the aspects of the estate and worse, it does not seem to be an isolated incident.

Other responsibilities involved in managing an empty property include: dealing with utilities and keeping insurances up to date; securing the property against squatters and other intruders; and liaising with estate agents and conveyancing solicitors.  If you have problems with probate, please contact us - we have an advisory service to help family Executors as well as a full service where our company does everything.  We do NOT insist on taking over everything - having the family do many jobs can save a great deal of money.

Question: GIFTS

I would be grateful if you could advise me on the following:-

My dad received a sum of money (inheritance) recently. He's put the money into an account in joint names with my mum. They want to give the money to my brother and myself.

I'm just concern that since dad is in his late 60's, if something happens to him in the next 7 years - my brother and I will have to pay inheritance tax on what he's given us? However, since the money is now in joint names, does it mean that as long one of my parents is still around for the next 7 years, there will be no inheritance tax for us to pay?

Your comments would be much appreciated.

Regards,
Teresa

Answer

Your dad has effectively given half the money to your mother, so BOTH can now use their allowances to give it to you and your brother, which doubles the tax exemptions:
1) Each can give away £3000 to one person each tax year (and catch up with last year if the allowance was not used then).
2) They can each give you an amount of up to £285,000 which is POTENTIALLY exempt - as you say, as long as they survive 7 years from the time the gift is cleared through your bank. After 3 years, there is a discount on any tax paid). If their health is tolerable, you could see your IFA (or find a local IFA on www.FindaPro.co.uk)

There is normally no IHT on gifts between spouses EXCEPT that it get much tougher if either spouse is not UK domiciled (broadly the UK is their home and their is no possibility of anywhere else being considered home - your surname indicates this could be a possibility.

With regard to the IHT clock once the gift has been made, and also the allowances, I believe it is likely to be treated as having come half from one parent and half from the other, so if one dies, half of the gift would need to be declared to the Capital Taxes Office. Much safer to divide the cash up and mum to send half and dad to send half from their own accounts, then there can be no doubt. The Taxman then has little to attack.

You may find my book Inheritance Tax Secrets - available free at www.Inheritance-Tax-Secrets.co.uk - will give more detailed information on other planning methods (there are many!)

Question: Has Gordon Brown lost the plot in his 2006 budget?

STOP PRESS:"

Ouch!  I shall be shot however I answer that one! He needs to raise more Tax, and Trusts have been used to avoid a bucket load of tax in the past, so I think he has come down hard on them thinking he is penalising the rich (who have been taking full advantage for donkeys years!) but has in fact caught everyone but the very poor who can't even afford life insurance to protect their families, or Wills (we even have a free Will form for such people, available to Course subscribers below).  

Much Tax Planning in Wills appears to be unscathed, the problem is that all children will now have to inherit at 18 or tax will have to be paid.  I think this is lunacy, and I hope you will all get on to your MPs to get this changed!

Question: Is it hard to change a home from joint ownership to owning part each, as part of an IHT or Asset Protection plan?

No, it's dead easy, which is why we encourage clients to do that part themselves and save costs.  The tricky part is writing Wills correctly, keeping them under review, and taking a little professional advice on the first death.  Miss out any of those steps and your planning will probably fail. The Land Registry form is HERE - there isn't even a fee for registering it!

Question: I have moved, my executor has moved etc - do I need to change my Will?

No, the address at the time the Will (etc) was written is purely to identify the client (which is why it is SO important that it is right).  If they move thereafter, they remain identifiably the same person.  We suggest you keep a full list of everyone's contact details with your Will to make your executors job easier. 

Question: Who should I appoint as Executors?

Being an Executor can be a difficult and dangerous job - mess it up, and the liability follows you for life.  So you need someone "savvy" and utterly honest. It is unwise to appoint only one person, or just people in your own generation, as they may die before you.  Once you have made your family choices, we recommend that you give them access to professional Advice via Probate & Trustee Services Ltd.  They are happy to stand as Reserve and Advisory Executors - they will help your family executors if they want help, or take over ONLY if the other executors are dead or unable to act.

This contrasts strongly with most professional Executors who want to be in sole charge, so no one can fire them if they are slow or inefficient.

SWW Trust Corporation on 01522 687 888 option 2 are up to 60% cheaper than some probate companies and often 40% less expensive then local solicitors - and their service is local anywhere in England and wales..

Question: I am getting divorced - how will this affect my existing Will?

Not all divorce lawyers seem to understand Wills! The process of divorce does not affect you Will at all - until you ARE divorced, until your decree absolute has been granted. So the lesson is that you should re-write your Will as soon as your marriage breaks down, but bear in mind that you cannot write your soon to be ex- spouse out totally or he / she will challenge it in Court and probably win, at vast expense to all concerned.  The divorce courts will want a far settlement, and any Will would have to try to get the balance right from that point of view, and make clear reference to the fact that it was made during and despite the divorce or separation and was not to be invalidated by divorce.  It would probably be wise to write a new Will immediately, then amend it by way of Codicil after the courts decisions have been made. 

Question:  I keep getting more grandchildren, and I don't want to leave any of them out of my Will - what can I do?

We try to write Wills which include all grandchildren living at the time of your death in equal shares.  Then it doesn't matter how many there are, they all get equal shares.  There is no need to identify them individually, as they would normally be easily identifiable.  This does not work for children who are not natural grandchildren - e.g. adopted etc, who must be named.

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