Delay to probate

[Trevor51]

My mother died 14 months ago and it appears that we are no nearer probate than we were a year ago. The executor, my mother's, solicitor has failed to engage withe the relatives. He simply refused to give copies of the will to beneficiaries who requested a copy, only doing so 11 months after my mother's death. This is not a complicated case so have can we speed things up. It appears that the executor is doing nothing or has any intention of doing anything. At what point will HMRC wake up and ask for the inheritance tax?

[Peridot]

Hi Trevor51,

How stressful for you all. Is the estate complicated? Are their properties and shares to deal with? Have any of you received a copy of the Will yet?
Do you know if an amount has been paid to HMRC if you believe inheritance tax is due, even if the final calculation has not been dealt with yet? Payments can be made at any time and corrected once final figures are known. Interest starts accruing on IHT due after 12 months from the date your mother died.

Are you a residuary beneficiary do you know? What reason has the solicitor given for what appears to be a significant delay, although there may be complications that you are currently unaware of maybe?

[Trevor51]

The probate should not be difficult. There is a property worth circa £500,000. According to one brother there is supposed to £64000 in the bank. It is not clear to us if inheritance tax is due. I thought that there would be but some in the family believe that the allowance from when my father died in 2010 will carry over and when added to the allowance due to family members the assets will be below the threshold. Can anybody confirm this?
I have seen a copy of the will but I am not a beneficiary. One other bother does not inherit. Two other bothers and my sister do inherit.
In that respect it is not my concern as I am not a beneficiary however four of us are up to contest the will, money permitting.
As far as I am aware not tax has yet been paid. The rest of the family, with the exception of the one who is still residing in the house are getting increasingly frustrated with the solicitor's lack of progress and engagement. In some respects this gives us time to to determine what we do ourselves regarding contesting the will however my youngest bother and my sister are concerned that one bother is living in the house for free and is manipulating the situation. Hence our concerns as yo how long this will be allowed to continue.

[Peridot]

Hi again,
If your father left his estate to your mum and no other gifts in his Will then he won't have used his Nil Rate Band allowance (currently £325,000) this the passes to your mother's estate so potentially the allowance is doubled to £650,000. If the estate is valued at less that that then there will be no IHT to pay. One less thing to worry about maybe.
Has the Grant of Probate been obtained yet? If there is to be a claim made against the estate this most be done within 6mths of the Grant being issued. Have you made other posts on the potential claim, I have vague recollections?
It may be the delay has been caused due to the possibility of the claim and investigating the Will? You wouldn't be able to glean any information from the solicitor yourself not being a beneficiary but your brothers and sister should be able to if they are residuary beneficiaries.

[Trevor51]

Yes I did raise a question a couple of months back on this issue from a slightly different angle. At that time we couldn't see the will but we ultimately got a copy. We issued a Larke v Nugus letter to the solicitor but got a load of garbage back. My solicitor wrote back to my mother's solicitor saying that is wasn't acceptable not to have a file or notes on writing a will for a 90 year old. I have been on holiday so need to chase up my solicitor to see what we do next regarding the lack of a meaningful file as to why the will was written a certain way. eg why sums of money had been left to all the grand children but one had been excluded. Why 2 sons were excluded
Note the Larke v Nugus letter was sent 12 months after my mother's death so was no reason for the delay to probate although after January 2019 there might be some reason for delay but not from January 2018 to December 2018.
It looks like there might not be any inheritance tax, may be just a small amount depending on the amount of savings and the actual valuation of the property.
My brothers and sister are getting increasing frustrated with the lack of communication with our mother's solicitor, such as why is probate taking so long.

[Peridot]

Hiya,
It does seem an excessively long time for nothing to have happened assuming they were unaware of any issues prior to the Larke v Nugus letter.
There is something known as the Golden Rule with regard to preparing Wills for elderly and vulnerable clients. If there is any hint of confusion then good practice dictates that a Dr report should be obtained confirming capacity. This isn't always necessary of course where it is evident the elderly person is totally on the ball but should be at the back of the lawyer's mind when asked to change wills in these sorts of situations. It would be usual for a full attendance note to have been prepared explaining the person's reasons for changing the Will and their reasons for excluding people who previously were included in the Will.
Hopefully your solicitor can shed some light and guide you what options you have now.

[Trevor51]

Yes that is what we were expecting the Larke v Nugus to throw up but there was nothing. Two sons excluded completely and one grandchild excluded completely.
My sister and youngest brother despite inheriting feel it should be split equally instead of 3 ways. The other brother has the option to live in the house for life so in reality the other 2 are unlikely to see anything.
The brother has been living in the house for about 10 years, since before my father died. I was told because he was divorcing his wife and had no where to live. I only learnt recently that he was on bail for attacking his ex wife and that was the reason for moving in. He has subsequently re-married and only uses my mother's house M-F as it is close to his place of work.
It is therefore frustrating everybody that he will do nicely out of attacking his wife and brother number 2 and myself get nothing for no apparent reason.

[Peridot]

What a mess.. I think Deed of Variation was discussed before on your other thread. I am assuming the one fly in the ointment is the brother using the house as a base for work? Once you've spoken to your solicitor maybe an offer to the other beneficiaries splitting everything equally. If the other brother has another home it is as you say pretty unfair for him to retain the right to live at your parents home until he pops off or decides he doesn't need the property any longer.

It may be worth finding out how much a formal claim against the estate would cost and flagging that in any offer to the rest of the siblings? Bearing in mind there is apparently nothing to support the most recent Will and that could cause more risk to the beneficiaries if it went to Court (which the solicitors who drafted the Will and those dealing with the estate will know). Ultimately the estate value will go down considerably if a full blown claim occurs leaving even less for the beneficiaries

Even if the siblings have no intention of actually bringing the claim if push came to shove it seems that the threat may focus all minds?
Hopefully your solicitor will lay out the options for you and then get the ball rolling with an offer that points out the problems for the estate should a settlement not be achieved.

Do keep us posted how you get on.

[Trevor51]

Just took on board what you wrote here "explaining the person's reasons for changing the Will and their reasons for excluding people who previously were included in the Will."
As far as I am aware this was her first will. It was written a few months after my father died who I believe did not write any will. I assume therefore everything would go to my mother or equally 5 ways id she predeceased our father.

Does that make a difference?

[Peridot]

Hi,
If your father didn't have a Will then his estate would have to have followed the Intestacy Rules at the time. It may be the property was in joint names as Joint Tenants so would automatically have passed to the survivor but if not it may not have been dealt with as it should have been.
Another thing for the list to discuss with the solicitor when you see them I'm afraid. It will very much depend on what the value of his estate was when he died so any information you have or can recall may be helpful to your solicitor when discussing how things move forward now.