Latest Probate Developments

 In Probate, Wills

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The lot of the probate practitioner grows more complicated and contentious as time goes by. The validity of Wills is challenged with regularity and whilst this may mean problems for the Will draftsman it inevitably results in delay in the administration of an estate. It is also true that changes to taxation are a regular feature of our legal system and keeping abreast with the minutiae is always tricky. This blog mentions a few of the latest developments.

Contentious probate – a lacuna in the law?

In many cases where the validity of the Will is challenged the Grant of Probate may already have been issued and the Executors are anxious to start distributing the assets under the Will which was proved. Unfortunately, once someone challenges the validity of that Will the Executors are on notice of the potential claim and so proceeding to distribute when on notice means they waive the protection of s.27 Administration of Estates Act 1925.

It is then frustrating to all involved if the claimant then does nothing to promulgate the challenge apart from continuing to threaten proceedings which never materialise. I was reminded in a recent case on which I advised that there is a gap in the law here. There is no specific time limit during which proceedings must be commenced.

The useful case of Cobden-Ramsay v Sutton [2009] WTLR 1303 may produce a solution. The Executor there faced with such a challenge did not want to incur the costs of a full blown action to prove the Will in solemn form and so applied to the court for directions as to what he should do. Deputy Master Behrens made an order permitting the Executor to distribute the estate in accordance with the Will unless the defendant issued proceedings within 28 days. This protected the Executor and therefore speeded up the administration of an estate which was otherwise frozen indefinitely.

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Excepted Estate changes

The Inheritance Tax (Delivery of Accounts) (Excepted Estates) (Amendment) Regulations 2011, SI2011/214 came into force on 1 March 2011. They bring into effect some tidying up of the rules but in essence their main purpose is to increase the number of estates for which the IHT400 will not be required to accommodate the transferable nil rate band. ‘Small estates’ where the gross estate is within one nil rate band have up to now been able to use the IHT 205 instead of the IHT400; this is extended to those estates where for deaths on or after 6 April 2011 there is an inherited NRB from an earlier deceased spouse or civil partner. The intention is only to permit the use of the IHT 205 in the simplest cases – i.e. where the whole of the TNRB is available to the surviving spouse or civil partner.

Exempt estates – where the gross estate does not exceed £1 million and the net estate, after deducting liabilities and available spouse and charity exemptions is also increased to include the simple TNRB where again the whole of it is transferred to the deceased.

Non-Contentious Probate Fees (Amendment) order 2011 – SI2011/588

From the 4 April 2011 prices go up:

  • An application for a Grant which currently costs £40.00 will rise to £45.00
  • Caveats up to £20
  • Standing searches – £6
  • Deposit of Wills – £20
  • Oaths – £6 per deponent; £2 for exhibits
  • Settling documents – £12

Practice Points

  • Remember the increase in the probate application fees – there is nothing more annoying than having an application returned for want of the correct fee
  • Remember the extension of the Excepted Estates procedure as a welcome relaxation of the limitation on using IHT 205 – but watch it is only of benefit in the simplest of cases
  • Force a challenger of the Will you have proved to ‘put up or shut up’ rather than languish in the still waters of inactivity – a sure fire way to annoy the beneficiaries

© Gill Steel LawSkills Ltd


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