5 Common Probate Problems

Many unforeseen issues can occur during the probate process

. Here are 5 of the most common with advice on what to do in each case.

1. A caveat has been entered in

A caveat prevents probate from being granted and therefore stops the executor from administering the estate. It is the first step in contesting a will and remains in force for 6 months from the date it was lodged. It can only be removed if both parties consent. Therefore, during this time, parties are encouraged to sort out their differences. When it expires, it can be extended for another six months. It is recommended that you seek professional probate advice immediately.

2. Beneficiaries want to change the will or alter intestacy

This is normally to mitigate inheritance tax liability. It can be done through a Deed of Variation but only if all beneficiaries agree and no-one is compensated for what they give up. Providing this is the case, a probate practitioner can draw up the document. Note that, if any of the heirs are children, or even unborn children, Court approval will be required.

3. The deceased owns a holiday home abroad

Laws vary depending on where the property is located. In some countries it is possible to reseal probate, rather than going through the entire process for a second time. France and Spain are both common places to for UK citizens to have holiday homes. Unfortunately the laws in these countries are some of the most complex when it comes to probate. It is advisable to contact a specialist.

4. Disagreements concerning the sale of property

It is common for siblings to disagree over what to do when they jointly inherit a property. In the case of a family home there can be strong sentimental reasons for wanting to hold onto a property. The financial aspect brings up a whole host of questions. Is it a good time to sell? What about Capital gains tax? Is renting an option? What state of repair is the property in? Who will maintain it? In these situations, it is strongly advisable to do everything you can to work out disagreements within the family.

5. Paying inheritance tax

IHT must be paid before probate can be granted. Sometimes, those who inherit simply do not have the funds to pay the tax bill from their own pocket which can seriously delay probate. You may find yourself having to borrow the money or even taking out a bank loan. Tax on property can paid in 10 annual instalments, as the beneficiaries continue to own it, at a rate of 4% interest. For those that pay the tax up front, there"s no guarantee that assets sell for the value that was declared. While you have the opportunity to inform HMRC and claim back over-payment of tax, this can take years and costs even more. Where IHT is due, getting probate advice is always recommended.

by: Tony Crocker

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