Probate Details Flashcards
What are rights of beneficiaries?
If not a PR, only to have estate administered correctly and
Test for capacity
- Age 18 unless in military service
- Statutory presumption - burden on challengor
- If at material time unable to make a decision for himself because of impairment or disturbance in the functioning of the brain
Capacity concerns the nature of the act of making a will; extent of property; claims to which is giving effect
ON EXECUTION
Mental states presumed to continue
Did testator know and approve the contents?
- presumption that does
- burden on propounder of will
- presumption of knowledge and approval rebutted if blind, illiterate or signed on behalf
Intestacy - order
- held on trust
- PRs pay funeral testamentary and admin of administration, debts and liabilities
- remainder paid:
If spouse alone: all to spouse
If spouse and children: all have interest
If spouse and parents/siblings: all have interest
If no spouse but children: all to children
If no spouse or children: parents, if not full brother, if not half brother, if not grandparents, if not uncles full blood, if not uncles half blood
Intestacy - division
If goes to surviving Spouse, all to them, unless children. If children, Spouse takes personal chattels, 250k plus intererst, life interest in half residue. Children take half residue, revisionary interest in parents half.
Spouse must survive 28 days to take an interest. Divorced doesn’t benefit. Life interest can convert to capital sum within 12 months of grant.
Who may apply for maintenance
Spouse, former spouse not married, co-habited for 2 years, child, person treated as child, or person immediately prior to death being wholly or partly maintained - MUST apply with 6 months from date of the grant
Types of grant
- probate - valid will with executors
- letters administration with will annexed = valid will, executors fails
- letters of administration - intestate, no will
When might affidavit evidence be needed?
No attestation clause or plight and condition of will
How many administrators are needed?
2 if there is a minority or life interest
What are the pre-grant requirements
- original death certificate
- Advise on succession and revenue
- Attend to wishes on funeral, consulting with PR
- Compile list assets and liabilities
- Secure property as needed
- Value assets and liabilities
- Protect PRs by s27 advertising
First appointment:
Client's details: PR, name address, telephone number email Deceased details, name address on death Family beneficiaries Will? Death certificate Property and assets Debts Documents
Probate attendance Note
Client care + costs Professional conduct General instructions Deceased details Relevant family details Details all assets and liabilities Searches for will? Who will be acting to administer IHT payable? Outline of procedure for applying for grant Cost Further information needed
Professional conduct in maintenance claims
Wait 6 months or ensure no come back from PRs
Separate representation
Probate IV
1/ Client care: letter, fees, complaints, confidentiality
2/ Start with open question: tell me what’s happened
3/ Ascertain all costs - inc. funeral costs
4/ Ask for copies of all documents, eg. share certificates, property deeds
5 / Ask about searches - solicitors/probate registry
6/ Is it the last will?
7/ Valuations
8/ Preliminary advice
Intestacy
Survivorship is o/s will - joint property remains joint
Spouse takes personal chattels
250k spousal statutory legacy
Spouse takes half residue
Balance to spouse and children in equal shares
Death in service/pension
Pension/death in service: NOT part of estate.
Death in service and pension is NOT normally subject to IHT
How to pay for funeral?
Can normally pay straight from bank account
Spouse can be reimbursed later
Intestacy: who takes the grant
Spouse if children over 18, if one child under 18 then need 2 x administrators
IHT annual exemption for gifts
3k a year
Intestacy:
Oath for administrator
IHT400 if tax to pay or over 1m
Professional valuations
What if property not sold
Register in names in shares with trust declaration as to entitlement
Joint assets
Not in transfer for passing under grant of representation
DOES count for IHT
Spousal exemption
Everything to spouse if UK domiciled
Remember that any unused nil-rate band transfers to spouse.
Residence to children - what happens to IHT
Threshold raises to 475k. Also transferable. As long as estate not more than 2m. Currently 150k
Claim for dependency - affect IHT?
Yes - could effect eg. spousal exemptions
End of IV
Ensure will instruct firm Recap to do Letter of advice in writing Timeframe for actions Ensure decisions are for the client
Residential nil rate band
Close connected - spouse, children, grandchildren
What is the instalment option
10 annual instalments / when sold
Property or business or interest in business
Some unquoted shares
First 10% due upfront
How is tax paid
Most banks pay straight from account - can be released before probate is grated. Fill in form IHT423
CGT on death
Wiped out - executors deemed to get at market value on death. May make gain if sell for more than market value. 11,300 a year for year of death and 2 x years after. Gains by PR taxed at 28%, otherwise 20%
How does installment option work
Pay as a percentage of the overall estate/liability. Interest runs
What happens if leave to child or grand child and they die?
Goes to their child, if living, unless contrary shown s.33 Wills Act 1837
When are solicitors fees paid
Need money on account from client, or render bill from when the grant of administration/probate (deduct from fees in client account)
