Retrospective probate current or old laws/taxes?

[1nvest]

If a case where probate should have been made/applied at the passing of the first of a (married) couple does't occur until the passing (or mental incapacitation) of the longer survivor, is retrospective probate applied according to the laws/taxation (and values) applicable at that historic date to settle the first case, or in accordance with the laws/taxation (values) at the time of actual probate being made/applied?

Aunt outlives uncle by some (15+) years, where their home had been changed from Joint Tenants to Tenants in Common and where probate should have been made/applied at the time the uncle died, but wasn't. Now Aunt is mentally incapable of managing her affairs and Nephew has to step in and sort out the matter. I believe, not sure, that they dealt with Trust Matters some 20+ years ago who arranged things such as preparing power of attorney, wills etc. that on the passing of the first their half the property went into trust with the other as one of the trustees or something similar to that effect. Don't know where that documentation is and aunt isn't able to recall anything of help. A land title search however does indicate that the property is in tenants in common rather than joint tenants.

TIA

[Lootman]

If a case where probate should have been made/applied at the passing of the first of a (married) couple does't occur until the passing (or mental incapacitation) of the longer survivor, is retrospective probate applied according to the laws/taxation (and values) applicable at that historic date to settle the first case, or in accordance with the laws/taxation (values) at the time of actual probate being made/applied?

I recall from somewhere that probate is supposed to happen within 2 years of death. Or at least be applied for within 2 years.

Otherwise the executors could be personally liable for that failure.

But after 20 years many of the executors and beneficiaries might have themselves died, the rules and forms would have changed, and it sounds like a big mess.

Time for an expensive lawyer perhaps?

[gryffron]

I recall from somewhere that probate is supposed to happen within 2 years of death. Or at least be applied for within 2 years.

There is explicitly no time limit on probate. https://probatesearch.service.gov.uk/help "There is no time limit on when a Grant may be obtained."

Just applied for my mum's who died in 2017. Having recently found out she still owned half the house from a will written in 2005, exactly as per 1nvest's situation. Such TiC trusts were the recommended way of doing things before transferrable NRBs. Luckily I am both trustee and executor.

For taxation the rules at time of death apply. There were reporting/paperwork changes in 2021. Otherwise the last big change to the rules was in 2008 when transferrable NRB were introduced.

Any decent will solicitor should be able to help. Mine has only cost a few hundred so far.

[edit]One more thought. First find your will! There is a website called certainty.co.uk who might be able to help find a will if it was lodged at a solicitor (Highly likely if they wrote the whole TiC/trust thing). Recommended by my solicitor, and worked for me.

Gryff

[Lootman]

I recall from somewhere that probate is supposed to happen within 2 years of death. Or at least be applied for within 2 years.

There is explicitly no time limit on probate. https://probatesearch.service.gov.uk/help "There is no time limit on when a Grant may be obtained."

I cannot argue with that since I do not recall where I read what I thought I read. But that said it seems odd if there is no time limit since that implies that probate is effectively optional, since you can delay it forever.

And that implies that the determination and payment of IHT is optional, since that happens as part of probate. And if that is the case then that is very interesting indeed.

[gryffron]

that implies that the determination and payment of IHT is optional, since that happens as part of probate.

Inheritance tax is paid before probate. The first (estimated) payment must be paid within 6 months of death.

And yes, this means executors may have to pay it before the deceased's funds are released, and possibly even before they can access all the information on what those funds are.
Though banks will typically release info to executors before probate is granted. They may directly pay IHT from the estate before probate. Quite a lot of banks will pay out to executors before probate. IME accounts up to about £50k they didn't even ask.

Gryff

[chas49]

I believe, not sure, that they dealt with Trust Matters some 20+ years ago who arranged things such as preparing power of attorney, wills etc.

Do you mean "they dealt with matters such as setting up a trust", or "they dealt with a firm called Trust Matters, who arranged things...." ?

If the latter, is it https://www.trustmatters.co.uk/ ? If so, or if it might be, perhaps they will have records of what was done?

[Lootman]

that implies that the determination and payment of IHT is optional, since that happens as part of probate.

Inheritance tax is paid before probate. The first (estimated) payment must be paid within 6 months of death.

And yes, this means executors may have to pay it before the deceased's funds are released, and possibly even before they can access all the information on what those funds are.

OK but even so, if probate has not started then I do not see how an executor can be held liable for IHT or anything else. If he/she has not started the probate process, nor done anything that might be regarded as intermeddling, then it seems to me that they are off the hook. Indeed they could renounce the role.

Probate, and being an executor, is ultimately an optional activity even if IHT being due is not.

[1nvest]

Thanks for all of the replies, especially Gryff's.

@chas49 - thanks I'll follow that lead up. Come to think of it and I believe it may have been a company called TrustMatters that they dealt with. Seem to recall their attending a hotel venue/presentation back in 1999/2000 about wills/power of attorney etc. that they talked about when I visited them some time after that. I distinctly remember the year as that's when I moved home and factors such as writing a will etc. were part of the chat and I had my own lasting power of attorney documentation prepared after that despite being relatively young.

[Clitheroekid]

There is explicitly no time limit on probate. https://probatesearch.service.gov.uk/help "There is no time limit on when a Grant may be obtained."

I cannot argue with that since I do not recall where I read what I thought I read. But that said it seems odd if there is no time limit since that implies that probate is effectively optional, since you can delay it forever.

And that implies that the determination and payment of IHT is optional, since that happens as part of probate. And if that is the case then that is very interesting indeed.

Although it's correct that probate can often be dispensed with this only applies to small estates or where most of the property is owned as joint tenants, so passes by survivorship.

However, where there are any significant assets - and always where there is land involved - probate is needed to transfer title to those assets.

Inheritance tax becomes due 6 months after the date of death, and although you may well be able to delay payment by not applying for probate it's not exactly a brilliant idea, as interest on overdue tax is charged at the hefty rate of 7.5% p.a.