Monthly Archives: March 2017

Probate fees increase – further guidance issued

By | Probate | No Comments

In response to the recent changes to probate fees, the Ministry of Justice (MOJ) has now issued further guidance to help clarify how the proposed increase in fees will work in practice.


A common concern was the “Catch 22” scenario, as outlined in our previous article of 3rd March, whereby Executors would be unable to obtain probate without paying the proposed fee, but would be unable to access the assets in the estate to pay the fee without first obtaining the Grant of Probate.


In response to this particular issue the MOJ have advised that Executors will be able to ‘apply to the probate service to access a particular asset for the sole purpose of paying the fee’. It is not yet clear how wide the scope of this access will be, and may not provide any relief where the main asset in the estate is the property, as this must be sold in any event once probate has been granted. It may however be beneficial to Executors handling an estate with significant assets in stocks & shares and investments, as ordinarily such assets cannot be accessed without first obtaining probate, irrelevant of the value of the holding or number of shares held.


In addition to the above the MOJ have also advised that it will be possible to submit an early application for probate pending the required approval from HMRC (approval is required by HMRC in cases where inheritance tax is due or the estate is otherwise classed as non-exempt). Any applications submitted before May will not be subject to the proposed fee increase, regardless of how long HMRC may subsequently take to approve any inheritance tax account and provide the necessary clearance paperwork after the implementation of the new fees.


Whilst this will certainly be a relief for Executors who are currently in the early stages of estate administration, it is likely that Probate Registries across the country will soon face a barrage of applications over the coming weeks. It is not yet clear whether any measures have been taken to help HM Courts & Tribunal Service cope with the additional workload and continue to provide an acceptable level of service to customers.

Signing your Will – It’s pretty important

By | Attestation | No Comments

When you make a Will, it is obviously important that it is signed and attested correctly, to ensure that it becomes legally valid document. But what steps should be taken where a Testator cannot physically sign their Will, or where the Testator is blind or illiterate?

Generally, any mark made by the Testator and intended to be their signature will be effective. However, in some circumstances extra precautions should be taken in order to avoid the eventual need for Affidavit evidence by the Probate Registry, to demonstrate that the Testator knew of and perfectly understood the contents of the Will. It should be noted however, that where a signature is incomplete or appears frail, then the Probate Registry may require Affidavit evidence anyway to ensure that the Testator appreciated the significance of what they were doing.

Section 9 of the Wills Act 1837 states:

“No will shall be valid unless—

(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)it appears that the testator intended by his signature to give effect to the will; and

(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d)each witness either—

(i)attests and signs the will; or

(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.”

There is no requirement for a Will to have an attestation clause and the lack of one does not invalidate a Will. However, the inclusion of an attestation clause provides more certainty that the Testator intended and approved the contents of his Will and can prevent the need for the admission of further evidence by the Probate Registry in the future. For most Will writers, the inclusion of an attestation clause is standard practice.

In the event that the Testator is blind or illiterate, including an attestation clause is particularly important and amendments should be made to a standard clause to demonstrate that they cannot physically sign their Will or that they are blind or illiterate. It is essential that the Will is read out to the Testator by someone independent to ensure that they understand and approve the content and then have the attestation clause adjusted to demonstrate this. It is recommended that the witnesses are present when the Will is read out to the Testator, so that they themselves can guarantee that the Testator understands the content. It may also be advisable to record who reads the Will to the Testator, should they be required to provide evidence in the future.

In some cases, where there is absolutely no possibility that the Testator can sign their name or make any mark, then it possible to have someone sign the Will on their behalf. An example of the attestation clause that might be used in this instance is as follows:

“Signed by _______________ with the name of the Testator in his/her presence and at his direction, the Will having previously been read over to him by _________________ and the Testator having acknowledged his complete understanding and approval of the contents of the same, in our presence and then signed by us in his presence”.

It is ultimately always important to ensure that any Testator intends, approves and understands the content of their Will, however, in special circumstances such as those outlined above, there is a greater need to prove this and so extra care, precaution and steps must be taken in order to do so.

Failed Will Trusts: A Mistake Even Experts Make

By | Gifts | No Comments

A lot of Will trusts over houses ensure that an occupant (be it spouse, partner or another relative) can live in the deceased’s property for life, while protecting the underlying equity for the benefit of children. This is very useful, for example, where a testator wants their new spouse to remain in the property after they die, but wants their children from their first marriage to have their interests in the property secured.

Most property trusts involve a “life tenant” who is given rights of occupation, and “remaindermen” beneficiaries who obtain the capital on the death of the life tenant. This sets up the “two-tier” rights for most scenarios: e.g. stepmother can live in the property for now, but on death, the children can take the house entirely.

However, a fatal flaw often arises in these Will trusts where the life tenant is accidentally included as the remainderman. This can happen because of a drafting error, or an oversight on behalf of the Will writer.

In those cases, the life tenant then becomes entitled to the underlying equity instead of the remaindermen. This hands the whole property over to them, defeating the whole purpose of the trust to protect the remaindermen’s shares.

It is possible to correct this: either through a deed of variation (but only if the life tenant is willing, which in difficult stepfamily scenarios may not be viable); or through a Court order to have the Will rectified. Both of these options involve additional legal work, time and expense.

Prevention is better than the cure. Check your Will and consult with your Will writer now if you have any such life interest trust in your Will, and see whether your family’s interests are secured precisely as you intended. It could save a great deal of grief in the long term.

Controversial changes to Probate fees

By | Probate | No Comments

Enormous and controversial changes to Probate fees


Despite resounding criticism from Probate lawyers and other experts, the Government has proceeded with controversial changes to the Probate fees chargeable from estates, which could cost some estates £20,000.

The proposals, which are expected to be implemented in the coming months, will see many executors struggling to find adequate finances from estates in order to pay the fees upfront before the Grant of Probate can be obtained.

Particularly with “property-rich, cash-poor” estates, liquid assets will not be available to pay fees which will have increased by up to 129 times their original cost. Furthermore some banks do not provide cash from estates to pay administration costs upfront. Where cash is unavailable, HMCTS recommends that executors seek a loan (depending on their credit rating), pay upfront themselves, or simply renounce.

In such “Catch 22” situations, where the Grant is needed to receive sufficient estate assets to pay for said Grant, executors may face additional expenses and delays: all of which ultimately will affect beneficiaries in the long run.

The proposed fee tiers were met with fierce disapproval. To quote the Government’s own response to the consultation: “We received 831 responses to this question. 13 respondents agreed with the proposal.” The Government nevertheless intends to proceed implementing these proposals into law.

The only two groups who stand to benefit are those who are administering to estates under £50,000 – which in many circumstances do not require the Grant of Probate anyway – and insurance companies whose policies the Government recommends as a means of cushioning the blow.

The government has yet to comment on whether the fee increases for estates over £50,000 constitute unlawful taxation, i.e. levies on taxpayers without Parliamentary approval.

The following table demonstrated the estate tiers to be implemented, alongside the percentage of estates estimated to be affected and the new fee applicable.


Up to £50,000 or exempt from requiring a grant of probate 58% £0
£50,000 – £300,000 23% £300
£300,000 – £500,000 11% £1,000
£500,000 – £1m 6% £4,000
£1m – £1.6m 1% £8,000
£1.6m – £2m 0.3% £12,000
Above £2m 0.5% £20,000