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Probate and in what order?

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  • Probate and in what order?

    Hi,

    I am hoping someone can please provide some advice for me in how to progress in applying for probate.

    My father passed away in Aug 22. Had the family property is his name, but had no known will.

    My mother passed away last month and again had no will. Only a savings account in her name.

    The current guidance I have been given is I need to apply for probate for my mother first and then for my father?

    As there are no wills, will my fathers estate pass down to my mother?

    if that is the case, why do I need to apply for probate for my father, if the estate passes to my mother?
    Tags: None

  • #2
    You need probate for your late father's estate to transfer the property out of his name. So that should come first.

    As to what else, more info is needed about asset values and those entitled to share in the estates onthe intestacies of your parents.
    Lawyer (solicitor) - retired from practice, now in academia. I do not advise by private message.

    Litigants in Person should download and read this: https://www.judiciary.uk/wp-content/..._in_Person.pdf

    Comment


    • #3
      Hi LiverpoolRed

      Welcome to LB

      Sorry for your losses.

      Where there are no wills, rules of intestacy apply. If your late father passed away first then his Probate should have been resolved first. His assets would have passed to your late mother, providing the limits were adhered too.

      Had that occurred as it should have, then again, your late mother left no will, rules of intestacy apply. I don't think you can deal with your mothers Probate first.

      Wait for other members to respond.

      https://www.citizensadvice.org.uk/fa...'s%20share.

      Comment


      • #4
        Hi
        My advice is to consult a local solicitor as it is not straight forward.

        Was the value of your father's estate including his property over £270,000 at the date of his death?

        Do you have any siblings? Did your father and mother live in Scotland?

        Probate should have been obtained to change the name on the deeds to your mother's name. Other forms in addition to the probate grant should have been sent to the Land Registry. Whether that process is still required now your mother has died, or whether the property can pass direct to the beneficiary or beneficiaries I'm not sure
        Last edited by Pezza54; 12th February 2024, 20:31:PM.

        Comment


        • #5
          Probate of the father's estate is needed for the reasons already given. But legal advice would be wide.
          Lawyer (solicitor) - retired from practice, now in academia. I do not advise by private message.

          Litigants in Person should download and read this: https://www.judiciary.uk/wp-content/..._in_Person.pdf

          Comment


          • #6
            Thank you for the replies, much appreciated.

            To answer some of the questions:

            - My fathers estate was not worth more than £270k, at the time of his death.

            - My mother was unwell for a long period and we never thought about doing probate for my father, until now.

            - We are in England.

            - I have several siblings, but itís been agreed my fathers property would go to one sibling.

            - asset values are around £175k for my fathers property and around £20k in the bank for my mother.

            - property was transferred from my mother to a sibling less than year ago, which is probably valued around £200k

            Probate for my father in order to change the name on the property makes sense and thatís fine.

            If I do probate for my mother first, do I need to include estate valuations including my fathers?

            I will try to get some legal advice locally.

            Comment


            • #7
              Originally posted by atticus View Post
              Probate of the father's estate is needed for the reasons already given. But legal advice would be wide.
              Oops... legal advice would be WISE!
              Lawyer (solicitor) - retired from practice, now in academia. I do not advise by private message.

              Litigants in Person should download and read this: https://www.judiciary.uk/wp-content/..._in_Person.pdf

              Comment


              • #8
                So when your father died the property was registered at the Land Registry as owned solely by him, but later you say "property was transferred from my mother to a sibling less than year ago" and "Probate for my father in order to change the name on the property makes sense." which seem contradictory.

                Who is now the registered owner at the Land Registry?


                All opinions expressed are based on my personal experience. I am not a lawyer and do not hold any legal qualifications.

                Comment


                • #9
                  That was a separate property. This was to explain all the assets for both my mother and father, for inheritance tax purposes.

                  so at the time of death, my father had a property solely in his name.

                  at the time of death my mother didnít have a property in her name.

                  hope that clarifies things.

                  Comment


                  • #10
                    All very confusing. I am not sure how your mother was able to gift her property to her son or daughter if she didn't actually own it. Without Probate for your father the property remained in his estate and as far as I can tell is still in his estate waiting for the transfer of ownership.
                    Under the rules if intestacy, you and your siblings as beneficiaries are entitled to an equal share of your mother's estate, once the total estate value is calculated.(including the property -following probate for your father)
                    Provided all beneficiaries agree a deed of variation can be drafted by a solicitor to vary the intestacy rules so that one sibling inherits the property. All beneficiaries should sign the deed.
                    The good news is, it does not sound that there is any IHT to pay, both estates falling within the nil rate band of £325k.
                    If the property can pass direct from your father's estate to the sibling who is due to inherit it, probate may not be required for your mother.


                    Comment


                    • #11
                      Thanks, that's a lot clearer. I hadn't realised you were talking about separate properties.

                      So the property your mother transferred to a sibling as a gift before her death was in her name and she hadn't inherited it from your father It was worth about £200k. When she died her total assets were about £20k in the bank. You are probably aware that a gift to your child made less than a year before death will usually still count as part of your Estate for IHT purposes

                      The property owned by your father, valued at around £175k, is still registered in his name at the Land Registry. You don't say who is currently living in it but if your intention is to sell it you will need Probate/Letters of Administration to do that. Apart from the property his other assets when he died were minimal?

                      You need to consult a solicitor for advice on this.
                      All opinions expressed are based on my personal experience. I am not a lawyer and do not hold any legal qualifications.

                      Comment


                      • #12
                        I think the point is that the factual position needs to be investigated and clarified. This will include: ownership/title of the property; same with other assets; purported dealings; the family tree/entitlements on the intestacy of each parent. This requires some time and a lot of care.

                        A deed of variation may be possible, but bypassing mother's estate will require deft footwork.

                        And if, as PA now thinks, there is more than one property, this needs to be explained fully and clearly.
                        Lawyer (solicitor) - retired from practice, now in academia. I do not advise by private message.

                        Litigants in Person should download and read this: https://www.judiciary.uk/wp-content/..._in_Person.pdf

                        Comment


                        • #13
                          Simpler Rules that 'Joe Public' can understand would be good.
                          What we've got at the moment is VAR, that no one can understand.

                          Comment


                          • #14
                            If only OP had said there were 2 properties involved in their first post.
                            Under the rules of intestacy OPs mother should have inherited her husband's property worth £175k
                            If a deed of variation wasn't made then £175k should be added to the gift value £200k (made within 1 year of the date of death-no taper relief) plus £20k in the bank, which totals £395k This sum exceeds the £325k IHT NRB
                            OP should consult a solicitor to complete IHT forms as the mother's estate may be entitled to RNRB, which the solicitor has to apply for
                            My figures have made the assumption that the father's property was still worth £175K at the time of the mother's death

                            Comment


                            • #15
                              Thanks for the responses.

                              i have sought

                              Comment

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