Is Probate Necessary

[2Margaret]

My husband and I have made wills and I am wondering if the fact that everything we have is joint, ie bank acounts, savings, property would it be necessary to go through probate in the case of the first of us to die? As accounts and deeds are joint would everthing just be automatically transferred to the surviving spouse on production of death certificate? Having experienced the role of executor and obtaining probate on a family member feel it should not be necessary when everything is joint.

[woofgang]

some form of official process is always required by hmit either probate or letters of administration depending on the size of the estate. this is to ensure that the government gets its cut of any tax that it is due! you may feel that it isnt necessary, sadly the government has other ideas!!

[Canary42]

I see no reason to go through probate if EVERYTHING is joint owned - Probate (or L of A) is only required by some institutions (e.g. Banks) before they will release funds to the Executor for distribution - if you have joint ownership then they can't withhold the funds.

[Graham-W]

Probate and letters of administration are not always needed. I've just been looking into this for a friend who was expecting an inheritance when her mother died, two years ago. We applied to the probate office for a copy of the will and they replied that no will had been presented to the probate office. On the back of the form was a list of possible reasons, including, "from the CAB website":

"You usually need probate or letters of administration to deal with an estate if it includes property such as a flat or a house. Otherwise, you may not need probate or letters of administration if:

1. The estate is just made up of cash (that is, bank notes and coins) and personal possessions such as a car, furniture, and jewellery.
2. All the property in the estate is owned as beneficial joint tenants This property automatically becomes wholly owned by the other owner
3. You had a joint bank account
4. The amount of money is small
5. You discover that the estate is insolvent, that is, there is not enough money in the estate to pay all the debts, taxes and expenses
6. there are certain life insurance policies and pension benefits in the estate."

In my friends case clauses 2 & 3 seem to what has happened and her stepfather may now change what were mirror wills, to the benefit of his own son and exclude his step-daughter..

[woofgang]

so how does the government confirm that it has had its bite of the money or that they arent entitled to a bite?

[ladybirder]

This tells you all you need to know Margaret.
https://www.gov.uk/wills-probate-inheritance/overview

[Canary42]

The government frequently relies on the potential taxpayer to "confess" and many get away with not doing so in other areas than Inheritance Tax.

And, in this case, to quote the tax website :-

"Your estate usually doesn't owe Inheritance Tax on anything you leave to a spouse or civil partner who has their permanent home in the UK - nor on gifts you make to them in your lifetime - even if the amount is over the threshold."

[woofgang]

Indeed Canary, but that doesn't mean that it shouldn't be done...only that some people don't do it! There is also the consideration of any tax rebate that may be due, also bereavement payments (used to be called widow's benefit) that a bereaved spouse may miss out on.

[Peter Pedant]

Graham W this is commonplace and avoidable

even if the property were nt all joint
if the dead woman leaves no will ( = intestate ) then the widower collects the first 250k

Heir hunters is full of 2nd wives disinheriting the (now) step children
and the easy answer is .... the first one leaves a will.
[ still doesnt get over the issue if everything is joint ]

[Graham-W]

Thanks for that Peter.
Friends mother remarried after first husband died. House is in her name. The newly weds move house and new husband persuades wife to put it, along with everything else, into joint names as, "They are writing mirror wills to share everything equally between his step-daughter and his son when the last of the couple dies.
Friends mother dies. Her will has no need to go to probate as all is in joint names. Friends step-father writes new will. Stepdaughter gets nothing. Is that "end of"? Stepfather is still alive BTW.

[woofgang]

If I have understood you correctly, the joint names thing wouldn't have affected the outcome anyway. Probate or not, a will only becomes live when the testator dies (Did you see what I did there?) and unless property is left in trust, the surviving spouse can leave the estate, which they then own, to whomever they like. Its my understanding that all that "mirror wills" means is that two people have essentially the same will only where person As will leaves stuff to person B, person B's will leaves the same stuff to person A.

[Peter Pedant]

Graham - see wiki
http://en.wikipedia.org/wiki/Will_contract

Generally if A has said to B make a will doing X and I will then do Y,
( such as leave your goods to Y ) then it is enforceable
Of course you have to get the step father to admit that he induced his wife to do X by saying he would do Y. The s father has to be priddy thick to add: " and I am not gonna do it"

[2Margaret]

Thank you all for your help. Will now do a double check to make sure everything is joint.