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Probate problem

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mondee | 23:43 Wed 13th Jan 2010 | Civil
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My Father died about 18 months ago leaving a 4 story house in London which was in his name only. He died intestate (she tore up his only will which left the house to my sister and I). I have secured my rights by placing a caveat against the property. I know she has a right to stay in the property and there is nothing I can do about that...I have a couple of questions that I cannot get an answer for.....
(1)She is in her 70's, she may well outlive me, however should she die before she applied for probate would the whole estate pass to my sister and I?
(2) How long will the tax man wait before he takes legal action to recover the inheritance tax?
(3) Can I stop her from renting out any part of the house?

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1) not unless you apply to the probate registry after it is made public
2) the solicitor will probably pay the tax before anything else]
3) if there is no will she has to wait for her own claim to give her legal ownership, and you will be claiming too and so she can't do anything

I think.
Hello- can I check something? Who is the "she" that you refer to? Was "she " married to your father? If not, are you certain that she has a right to stay in the property? If she dies we can't say who the house passes to without knowing if you have any other siblings. Are you sure IHT is payable? If the house is now hers I can't see how you can stop her renting out part of the house.
1. Only if its willed to you.

2. Soon as probate is granted. Spouse not liable for IH.

3. Not if the property is hers.
Hmm. If she was married to your father at the time of his death, then she's surely entitled to the widow's share under the intestacy rules.That is the first £250,000 of the estate, for a start. What if she's made a will ? She can give that, plus anything else she's entitled to under the rules and which is transerable, to someone else by will..
Now, I can't think that the law says, that her rights as a beneficiary are defeated merely because she happens to die before there's a grant of letters of administration.The law wouldn't defeat them in a case where the deceased had made a will and all his executors happened to die (intestate or not) before grant of probate so why should it be different in an intestacy ?
If not, what have I missed ?
The taxman will get his money first, before anyone is allowed to administer the estate, ( get title to and then transfer the deceased's property to beneficiaries etc)
If 'she' tore up the will, not your father, then it is still valid.

She does still have rights to make a claim as a dependent though.
Was the will that she tore up made before the marriage of your father to her ? If so, it was automatically revoked by the marriage ( unless it was made in contemplation of the marriage) and is of no effect, whether destroyed or not.

If it was made after the marriage, what evidence do you have of a) its contents and b) her tearing it up otherwise than on the instructions of your father ? Did your father act as though it still existed or say anything that suggested he thought it did ?
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Thank you everybody. I had tried to keep my question short as this is very complicated.

My Father owned the property before he met his wife. He married her some years after purchasing it. My Father only has two children, my sister and I. His wife is from the Philippines and is intent on owning the whole property which is valued on or around £600,000.00. My Father's wife has children in the Philippines (who are not my Father's) and wishes to give them the proceeds of the whole house. (She tried and failed to remortgage the house whilst he was dying in hospital,).

She destroyed the only copy of a living Will that my Father possessed and told a family member that she tore it up because she was not named in it. Whilst my Father was alive he paid for several houses for her family in the Philippines knowing that she would return there after his death.
I am aware that she has a right to the first £250,000.00 and that my sister and I will share the remains that is left after tax and his £40,000.00 mortgage is repaid. However, I am unaware as to why she refuses to apply for probate. (Maybe she is waiting for me to pop my clogs!)

To date the house remains in my Father's name. I am prepared to wait however I would love to know what would happen should she die before she applied for probate. Would her children in the Philippines still inherit if she made a Will? I find it hard to understand how they can inherit something that she did not legally own at the time of her death.

I am also worried about what the taxman will do if she fails to apply for probate and fails to pay the inheritance tax over a number of years. Will they force a sale to pay the inheritance tax?

Last, but not least, if the house remains in my Father’s name, does she have the right to rent out any part of it and if not how do I stop her?

Thank you for your assistance.
First of all, there's more to it than her getting a lump sum from the estate and that's all.When I said she gets 'plus anything else she's entitled to'; she has a statutory right to a life interest in half the remainder of the estate. Now that may not worry you much but she can, if she wishes,within twelve months of the grant ('probate' ),demand a lump sum instead of the life interest. That lump sum is also tax free. It's calculated on an 'actuarial basis' and whatever figure is suggested the Revenue will settle the figure by reference to the Intestates Succession (Interest and Capital) Order 1977 (S11977/1491) as amended.,
Second, I said that the sum she gets under her automatic entitlement is £250,000.It would be but you said the death was 18 months ago.Well, if the date of death is on or before 31st January 2009 the figure is £125,000.[ source :HMRC]
Mondee - get some legal advice and get it fast.

Your father's will may still be valid. If he made it AFTER he married his wife and she tore it up, it is valid. Normally the original will be stored at his solicitors (or at least there will be a copy there). You need to make enquiries at the solicitors he used.

To answer your question though, if she dies before obtaining the Grant of Letters of Administration her children will inherit what she would have inherited under the intestacy rules of your father's estate. It is irrelevant whether the assets were vested in her name at the date of her death, because on your father's death was when the interest crystallised.

If your father DID die intestate, you can prevent her renting out the house since she is not entitled to it. She is only entitled to her interests under the intestacy rules and rights to capitalisation as dzug has pointed out. She may claim as a dependent, but many things will depend on this - not least the length of the marriage.

The IHT on real property can be paid by installments, but if you don't pay, the CTO WILL force a sale.

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