Have You Made A Will? Don't Run The Risk Of Delaying Probate And Creating Tax Problems

People that die without making a Will run the risk of delaying probate and creating tax problems.

Your questions answered

Q: What is probate?
A: Probate is a grant issued by the probate registry - a division of the courts - which executors may need to administer an estate. Getting this should be reasonably simple if the person who has died has left a Will, but is more complicated if, like most people, you die "intestate" - that is, without a Will. If you get remarried, any Will you have previously written becomes invalid.

Q: Why is dying without a Will more complicated?
A: For a start, you would not have outlined your wishes about who should act as an executor for your estate. The Administration of Estates Act 1925 outlines who can distribute the assets of someone who dies intestate, it will usually be a close relative. If the beneficiary is a child, there must be more than one executor.

Q: So what must executors do?
A: They need to obtain a grant of probate, if there is a Will, or grants of letters of administration if there isn't. Collectively, these are known as "grants of representation".

Q: Are these required for every estate?
A: No, not if all the assets in the estate - minus any liabilities - are worth less than £5,000, or everything has been owned jointly. Sometimes the banks will agree to release funds to an executor or administrator without the grant of representation. However, if the estate is worth more than £5,000, there are stocks and shares, land or property, or certain types of insurance policies, you need it.

Q: So what is the job of the executor, or administrator?
A: They have to make sure that the estate is properly administered, according to either the Will or the rules of intestacy. They also have to determine accurately whether there is any inheritance tax (IHT) due on the estate, and that it is paid.

Q: How much would I owe?
A: If the estate is worth less than £285,000 (tax year 2005/06) - known as the nil-rate band - there is no IHT to pay. Anything above this is taxed at 40 percent. If the assets are passing directly from husband to wife or vice versa, there is a spousal exemption, so no IHT liability.This is also the case for civil partnerships. Beware that this means the opportunity to give away £285,000 free of IHT is wasted and so an extra £114,000 tax will be paid when the second spouse or partner dies.

Q: Is there anything I can do to mitigate this tax?
A: There are so many things you can do that some accountants refer to it as a "voluntary" tax. The first step is to write a Will. However, you can undertake IHT planning after someone has died by changing their will with a "deed of variation" to make sure they have used up their full IHT nil-rate band.

If a married couple have not put in place any IHT planning then the surviving spouse has the possibility of varying the Will within two years. So for example, if the husband has left everything to his wife but she would like some to go to the children, then she could get a deed of variation written up so that assets to the value of the nil-rate band could be put in a trust for the children.

Q: When does the IHT bill have to be paid?
A: Before you can get probate. Paradoxically, it can be difficult getting the money to pay the IHT bill ahead of probate.

However, many banks and building societies have now agreed to release funds directly to H M Revenue and Customs to pay IHT bills to get around this.

Q: What if there isn't enough money?
A: You have six months from the end of the month in which the person died to pay IHT. After that, H M Revenue and Customs will charge interest on money outstanding.

If you have a property that creates an IHT liability, you can pay the tax bill in instalments over 10 years, so that you may be able to avoid selling it altogether, if necessary.

Q: What if I need to take a loan from the bank to pay the bill?
A: Then you will get tax relief on the interest, so this may be a better option than simply delaying payment - but it depends on your circumstances.

Q: Can I sell anything to raise cash to pay the bill before I get probate?
A: You cannot sell anything until probate is granted.

Q: How long does it take?
A: That depends on how complicated the estate is - it can take more than a year. Extra delays have been built into the system now, H M Revenue and Customs insist that all estates over £5,000 submit details of the contents with proper valuations.

H M Revenue and Customs does not like estimates, and they could fine the executors for misinformation.

There can be complications if the deceased has property abroad. So if you have written a Will in this country but have property in France, it will be subject to the French IHT laws. When buying property abroad you should be careful about writing a new Will, as this would supersede any other Will.

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