Father predeceased mother - is there now an intestacy/probate issue?

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ClubMan

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I know that the obvious answer is "ask your solicitor" but I'm not the executor so am not in a position to do so and just wanted to sound the board out...

Father died 20 years ago.
Left everything to mother - whether with or without a will is unclear right now.
If there was a will then I doubt that it went to probate at the time.
The children were all in complete agreement that everything going to mother was the correct thing - i.e. no contention.

Mother's estate is now going through probate.
Left everything to the children split equally.
There is no contention about this either.

Solicitor asked if father had a will.
Said that if yes then it will need to have gone to probate before my mother's probate can proceed.
And if no, then intestacy rules require that mother should have got 2/3rds and 1/3rd shared between the children.

Is this all correct?
If there is a will then do we really have to do probate on it now? Sounds like potentially a lot of hassle, delay and cost?
If there is no will then does it matter?
I think that there was mention of the executors having to sign an affidavit if there was no will or something?

Thanks for any info on this.
I nearly said "advice" but checked myself. ;)
 
noproblem said:
Who is the executor, is it one of the siblings?
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Yes - and, just to be clear, I am not second guessing them or the solicitor.
In fact they [sibling] asked me to see if I could find out some info about this situation.
But, does it matter in relation to my original post who is the executor?

Does it really matter that it should have been 2/3rds to mother and 1/3rd to children 20 years ago but it's 1/nth to each of the n children now?
Can we just do this my mother's probate and be done with it or not?
Doing probate 20 years on sounds like a real hassle.
 
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I suspect it will really come down to whether the house and any shared assets your mother had with your father had her name on them and the value of the non house assets at the time of his death.

So for instance if the house deeds still show in your dads name (not uncommon in the past) then probate would be required for your dad first.
 
So this sounds the same as what happened in my own family. My father had made a will but probate was not done as the only asset was the house. Accounts had been in joint or probably in my mother's name by then anyway. The thing is he was the family solicitor so knew the nuts and bolts. The solicitor had said to me from the outset that we had not bothered with probate in my father's case and there was nothing to suggest at any time that he had to do anything in particular during the process (now complete). I did have to produce my father's death cert to him though whether that is relevant. I should point out that my mother was in charge of financials in the household.
 
ClubMan said:
Said that if yes then it will need to have gone to probate before my mother's probate can proceed.
And if no, then intestacy rules require that mother should have got 2/3rds and 1/3rd shared between the children.
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That would be correct if your father held any assets in his sole name.

However, any assets held jointly with your mother (house, bank accounts, etc.) would pass automatically by survivorship without any need for a grant of probate or a letter of administration.
 
intestacy rules require that mother should have got 2/3rds and 1/3rd shared between the children
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children can decline the 1/3 - not unusual so as to ensure parent can stay in the family home.
 
Savvy said:
I suspect it will really come down to whether the house and any shared assets your mother had with your father had her name on them and the value of the non house assets at the time of his death.

So for instance if the house deeds still show in your dads name (not uncommon in the past) then probate would be required for your dad first.
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Sorry, that was the key piece of info that I omitted.
The house deeds are indeed in his sole name - as you say, common at the time (1950s).
So does this mean that probate of his estate is going to be unavoidable? :confused:
 
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elcato said:
So this sounds the same as what happened in my own family. My father had made a will but probate was not done as the only asset was the house. Accounts had been in joint or probably in my mother's name by then anyway. The thing is he was the family solicitor so knew the nuts and bolts. The solicitor had said to me from the outset that we had not bothered with probate in my father's case and there was nothing to suggest at any time that he had to do anything in particular during the process (now complete). I did have to produce my father's death cert to him though whether that is relevant. I should point out that my mother was in charge of financials in the household.
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Thanks but I'm very confused by your post and the scenario that you're trying to outline.
 
Thirsty said:
children can decline the 1/3 - not unusual so as to ensure parent can stay in the family home.
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Well it was never offered ;) but we would have declined it had it been. However it's still unclear whether it not my father had made a will in case that's relevant.

Sounds like the main issue is the fact that the house was in his sole name and was never officially transferred to my mother 20 years ago?
 
Resurrecting this thread....

Can anybody roughly outline what needs to happen for my father's will to go through probate?
He died 20 years ago but his will, leaving everything to my mother, did not go to probate at the time.
She just stayed in the family home and presumably got (possibly joint?) accounts etc. signed over to herself.
(As mentioned before there were no objections to any of this and little awareness that it maybe needed to be done more formally at the time!).
The family have absolutely no records of accounts etc. and little knowledge of his finances before everything passed to my mother so how does this work?
A key issue, mentioned before, is that the house remained in his sole name even after he had died.

Secondly my mother's will has been submitted to probate but because dementia/Alzheimer's was mentioned on the death certificate the probate office have queried things.
Presumably looking for evidence that she was of sound mind when the will was drawn up - which was well before she ever had any diagnosis of dementia etc.
But her GP at the time has said that she cannot vouch that she was of sound mind and neither will she vouch that she was not so that we could just deal with the estate as if she was intestate which would be the same net effect anyway - i.e. equal five way division of the estate.

What a palaver... :rolleyes:
 
The named executor in your father’s will needs to take out a Grant of Probate. Go to the local probate office and they’ll help. What the executor needs: Will, Certified Copy of Will, Schedule of Assets (aka Inland Revenue Affidavit), Notice of Application, Oath of Executor and Death Cert. The Grant of Probate is the key to transferring assets.
 
Thanks, but...
Jayom75 said:
Schedule of Assets (aka Inland Revenue Affidavit)
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Jayom75 said:
The Grant of Probate is the key to transferring assets.
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Inland Revenue?! Surely that's a UK term?

That's the thing - nobody has any idea what the schedule of assets was. Other than the house obviously. After his death my mother just took control of anything else (bank accounts etc.) which is what he wanted and what the family expected. But it looks like the oversight of not doing things "officially" at the time is coming back to bite us.
 
ClubMan said:
Surely that's a UK term?
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I didn’t make up the name. That’s what they call it.

You’ve asked for a question and I’ve answered it. The executor will just have to complete the Affidavit as best he or she can and go from there.
 
ClubMan said:
Yes but the one that @Jayom75 mentioned is the appropriate one in this case as my father died in early 2001.
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The executor will have to use their best endeavours “to the best of their information, knowledge and belief” to establish the assets during the relevant time period, get a valuation on the property for the relevant time period, get on to banks to account details and amounts (even historical ones) etc.

@ClubMan - if you’re not the executor, what has you so concerned about the intricacies of the administration of the estate?
 
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