Applying for probate - complex case study

We were approached for assistance from a client whose mother had sadly passed away and they believed they were appointed as the executor in their mother’s Will. The client wanted to make an application for a Grant of Representation to allow him to administer the estate, including gathering in the assets which included the potential sale of the residential home which he shared with his mother.

Following a meeting with the client and reviewing the Will, we noticed that the client was in fact not named as the executor and the Will had been prepared whilst the client and their siblings were around the age of 12. The Will had appointed two other family members to be the executors and trustees.

Challenges

There were several challenges we faced along the way in applying for the grant of representation:

1. Approaching the appointed executors to ascertain their position on our client taking on the role of executor instead;

2. The capacity and practicalities of the appointed executors;

3. Ensuring that the will our client had was the latest will and obtaining the original

4. Dealing with the legal issues and process required to enable our client to act as personal representative and administer the estate; and

5. Ascertain the value of the estate.

How we solved the issues for our client

1. With authority of the client, we wrote to each of the executors individually to advise them of their options in relation to their executorship appointment and advising they take independent legal advice. The options provided were informed and impartial, and included:

   a. Acting as the executor as per the Will and collecting and distributing the assets to this effect;

   b. Having power reserved, which means allowing the other appointed executor to make an application for a Grant of Probate, but having the power reserved to them meaning that they have the right to choose to act in the future if they wish; or

   c. Renouncing their role as executor and allowing the deceased’s son to take the role of administrator as a residuary beneficiary of the estate.

2. One executor agreed that they were practically not well-placed to deal with the estate due to not only their physical location but also because our client was living with the deceased at the time of passing therefore were a lot more familiar with the assets the deceased held. We were therefore able to complete a PA15 for that executor to renounce. The second appointed executor sadly did not have the capacity to take on their role as an executor, following the guidelines under the Mental Capacity Act 2005. We therefore were able to liaise with the executor’s appointed attorney (under a Lasting Power of Attorney) and agreed that a medical professional could complete a PA14 form to support our application and renounce the second executor from their role on medical grounds for lack of capacity.

3. As both executors had renounced and a residuary beneficiary was applying, the application for a Grant of Representation was no longer straightforward and could not be done online, we were required to submit a paper application for a Letters of Administration with the Will Annexed. This was the required application type because there was a valid Will in place, however our client applying was not the only residuary beneficiary named in the Will so they were not the only person entitled to the estate.

4. The original Will was held at a different solicitors; something which our client was unaware of and believed they had the original. We were able to check the copy Will produced, prepare an authority and liaise with the other firm to allow the release of the original Will.

5. Each person is entitled to what is referred to as a “nil rate band” which is a value of £325,000 that is charged at 0% for inheritance tax, effectively making the first £325,000 of a person’s estate tax-free subject to other conditions. If a residential home is owned and this is being left to the deceased’s direct descendants, the estate attracts a further £175,000 allowance known as the “residence nil rate band” taxed at 0%. This gave this estate a non-taxable allowance of £500,000. We found that upon investigation of the assets the total estate exceeded the £325,000 however was under the £500,000 therefore we would also need to complete the more complex inheritance tax forms, known as an “IHT400 account” to claim the residence nil rate band.

Impact

We were able to assist the client in making a smooth application for the Grant of Representation for their late mother’s estate by providing advice to prevent the rejection of the application by the Probate Registry. Without specialist advice it is likely that the client could have faced numerous setbacks and delays.