Donate to Remove ads

Got a credit card? use our Credit Card & Finance Calculators

Thanks to johnstevens77,Bhoddhisatva,scotia,Anonymous,Cornytiv34, for Donating to support the site

DIY conveyancing

including wills and probate
pochisoldi
Lemon Slice
Posts: 941
Joined: November 4th, 2016, 11:33 am
Has thanked: 31 times
Been thanked: 462 times

Re: DIY conveyancing

#148734

Postby pochisoldi » June 29th, 2018, 12:17 am

JonE wrote:
TaurusTheBull wrote:I was left more than enough cash to buy my brother's half of the house at current market prices.


As a layman without experience of this I wonder why you couldn't (within 2 years from date of death) both agree an instrument of variation (using IOV2 checklist to help draft the letter) which leaves you the house in full at probate valuation and leaves your brother extra cash equivalent to 50% of the house's probate valuation which cash would otherwise have gone to you.

Then the executors complete the simple form (AS1) to assent the property to you personally and the administration of the estate can be completed.

I am not clear on precisely what you have already done and don't know if you are able to unwind what may already have been done. Seeking some early legal advice specific to your plans and intentions may have been helpful.

Cheers!


Note that the IOV2 checklist is obsessed with "validity for IHT and CGT purposes", which is why many people use to want to execute a DoV of a will.

Given that the OP and OP's brother are both inheriting from an estate net of IHT, the only criteria is "is this deed of variation valid at all?"

Or put another way, if all the deed of variation does is vary the distribution of the estate, but doesn't change the IHT due on an estate, then all that is required is "valid for legal effect", not "valid for legal effect and IHT/CGT effect", and most of the IOV2 checklist conditions become an relevance.

IMHO most of the guidance related to the administration of estates and what to do after death emanates from the HMRC for the plain and simple reason that it is more efficient for the public revenue to ensure that executors/personal representatives don't cock things up in the first place. If it is clear that all IHT due on an estate has been paid, then they aren't directly interested in who gets what afterwards.

TaurusTheBull
2 Lemon pips
Posts: 113
Joined: November 4th, 2016, 11:41 pm
Has thanked: 3 times
Been thanked: 178 times

Re: DIY conveyancing

#148849

Postby TaurusTheBull » June 29th, 2018, 3:47 pm

Hi,

Thanks for all the replies. That is genuine, because it has put me on the right track in this matter. Although I'd heard of it before, I hadn't investigated the Deed Of Variation further.

Some might think I am trying to save peanuts, but that is not the case. For more information on that, look back to a previous thread about supposedly owning two properties, worldwide, and the corresponding (UK) SDLT implications.

I will submit my Deed Of Variation in October, but here are the relevant (general, not personal) facts, as I understand them:-

1. Two-year time limit to invoke a DoV after the death of the central character.
2. DoV can be done after distribution of a deceased's estate.
3. There can be no financial inducements to implement a DoV.
4. Any changes must be accountable within the estate.
5. All executors have to endorse purported changes to the Will.
6. Any changes must be made as if the deceased could reasonably have made them.
7. Only one Deed Of Variation is allowed, so get it right!

It seems to be the case that HMRC are primarily involved in legality, so this is where the DoV should be directed. Land Registry require Death Certificate and Grant Of Probate, but assume the Will is covered elsewhere (hence the need to inform HMRC beforehand, to cover oneself). These things should all be covered by a central database, but they are not. Also, since Land Registry are reticent to meet people face-to-face, personal ID needs to be verified by post.

After that, it's just a matter of which forms to fill in, and what to pay. Online payment is not allowed by private citizens, so a basic name transfer is £40. I've yet to find out if I need to pay more based on the value of my father's house, since I am not buying it, but I'd welcome any advice, since Land Registry are very slow to address this issue.

All very arcane and torturous, in my opinion, but it is what it is. I'll let you know the outcome of my very simple case in due course...

Cheers
Taurus

supremetwo
Lemon Quarter
Posts: 1007
Joined: November 8th, 2016, 2:20 am
Has thanked: 130 times
Been thanked: 196 times

Re: DIY conveyancing

#148854

Postby supremetwo » June 29th, 2018, 4:08 pm

TaurusTheBull wrote:After that, it's just a matter of which forms to fill in, and what to pay. Online payment is not allowed by private citizens, so a basic name transfer is £40. I've yet to find out if I need to pay more based on the value of my father's house, since I am not buying it, but I'd welcome any advice, since Land Registry are very slow to address this issue.

All very arcane and torturous, in my opinion, but it is what it is. I'll let you know the outcome of my very simple case in due course...

Cheers
Taurus

It should be be an assent form AS1 (via the executors) and a scale 2 fee.

https://www.gov.uk/government/publicati ... assent-as1

http://landregistry.data.gov.uk/fees-calculator.html

https://www.gov.uk/guidance/hm-land-reg ... ale-2-fees
See amount in the "apply by post" column.

Clitheroekid
Lemon Quarter
Posts: 2858
Joined: November 6th, 2016, 9:58 pm
Has thanked: 1385 times
Been thanked: 3771 times

Re: DIY conveyancing

#149329

Postby Clitheroekid » July 1st, 2018, 7:56 pm

I'm rather late to the party here, having been away from LF for a few days, but the first question that occurs to me is whether your father left the house specifically to you and your brother or whether he merely left his estate generally to you both.

The reason I ask is that it's very unusual (and generally considered very unwise) to leave a house as such to residuary beneficiaries. The vast majority of Wills simply leave `my residuary estate' of which the house forms part.

So if you could clarify this point I can the deal with the question generally.

TaurusTheBull
2 Lemon pips
Posts: 113
Joined: November 4th, 2016, 11:41 pm
Has thanked: 3 times
Been thanked: 178 times

Re: DIY conveyancing

#149683

Postby TaurusTheBull » July 3rd, 2018, 1:20 pm

The estate was left to both of us. The house wasn't specifically mentioned.

Deed Of Variation drones on about IHT and CGT "only". There is no mention of using it to avoid paying Stamp Duty. I find it utterly amazing that no-one seems to know the definitive answer to this, since it can hardly be the first time in the history of the World that these circumstances have arisen (i.e. enough money in the estate to do a re-balancing)...

Obviously, if the Variation is valid, Land Registry forms and fees are also less onerous.

PinkDalek
Lemon Half
Posts: 6139
Joined: November 4th, 2016, 1:12 pm
Has thanked: 1589 times
Been thanked: 1801 times

Re: DIY conveyancing

#149716

Postby PinkDalek » July 3rd, 2018, 2:48 pm

TaurusTheBull wrote:… Deed Of Variation drones on about IHT and CGT "only". There is no mention of using it to avoid paying Stamp Duty. ...


I'm sure Clitheroekid will get back to you, when he spots your post. However, when you say Deed Of Variation drones on about ...
it would depend where you look. I found the link below, when attempting to reply a few days ago, but lost my post.

https://www.gov.uk/guidance/stamp-duty- ... d-a-return

It includes (my bold italics):

"Property left in a will

Property left to you in a will is almost always exempt from SDLT. This includes property that has outstanding debt on it, for example a mortgage.

It also applies to a transaction that changes the terms of a will within 2 years of someone dying. The transaction is exempt from SDLT as long as:

a different beneficiary gets the property
the new beneficiary doesn’t pay a compensation payment, this includes taking over a mortgage".

I haven't search further.

Dod101
The full Lemon
Posts: 16629
Joined: October 10th, 2017, 11:33 am
Has thanked: 4343 times
Been thanked: 7534 times

Re: DIY conveyancing

#149737

Postby Dod101 » July 3rd, 2018, 3:36 pm

Deeds of Variation do not drone on about IHT and CGT. Maybe the rules pertaining to them do but that is not quite the same thing. I would anyway be interested in CK's response because if the property was just part of the estate surely the answer was/is for you (the OP) to take the property in specie, and your brother to take the cash, subject to a probable adjustment either way to ensure that you both get the same value. No need for a D of V then I would have thought. I had my late wife's 50% of my house transferred back to me (in terms of her Will) without my paying tax of any sort so I doubt that you need to pay tax either with the arrangement I am suggesting.

Might be totally wrong but CK will be the man who knows.

Dod

pochisoldi
Lemon Slice
Posts: 941
Joined: November 4th, 2016, 11:33 am
Has thanked: 31 times
Been thanked: 462 times

Re: DIY conveyancing

#149770

Postby pochisoldi » July 3rd, 2018, 5:45 pm

TaurusTheBull wrote:The estate was left to both of us. The house wasn't specifically mentioned.


The Executor is the trustee for the estate, and they have the right to act within the discretion granted by the will (which is effectively a deed of trust for the estate).

So if the will says "split the residue 50/50 between A and B", there is nothing wrong with A and B telling the executor "We want the estate to be distributed £250k house + £20k to A, and £270k cash to B".
No DoV required, because the effect of the request to the executor is inline with what's in the will, and all that is being asked is for the Executor to exercise their (permitted) discretion in how they distribute the residue.

I would even argue that not making such a transfer of the house would be contrary to the wishes of the deceased, because I am certain that they would have wanted the residue to be split 50/50 between A and B, not 50% to A (who doesn't want the house), 48% to B (who does), and 2% to HMRC for SDLT.

Note that the above still works if either A or B or both of them are simultaneously beneficiaries and executors - if this is the case then it's "A and B wearing their beneficiary's hat tell whoever's wearing the executors hat".

PochiSoldi
Usual not a lawyer disclaimer applies...

Clitheroekid
Lemon Quarter
Posts: 2858
Joined: November 6th, 2016, 9:58 pm
Has thanked: 1385 times
Been thanked: 3771 times

Re: DIY conveyancing

#150239

Postby Clitheroekid » July 5th, 2018, 3:22 pm

TaurusTheBull wrote:The estate was left to both of us. The house wasn't specifically mentioned.

In that case, I'm afraid most of this thread has been a waste of time!

As has been mentioned, the executors hold all the property in the estate on trust to distribute it in accordance with the Will. The general discretion vested in trustees means that they are quite at liberty, if the beneficiaries so desire, to transfer the house in its entirety to one beneficiary and transfer cash / assets of equivalent value to the other.

There is no need for any DoV, or for you to `buy' your brother's share.

What does rather bother me, however, is your comment:

We have informed HMRC and recently paid the requisite Stamp Duty.

What Stamp Duty (or more accurately SDLT)? There isn't any payable!

If you have paid SDLT when you didn't need to then I'm afraid it's an excellent illustration of the fact that sometimes paying for professional advice is actually a good investment ;)

Dod101
The full Lemon
Posts: 16629
Joined: October 10th, 2017, 11:33 am
Has thanked: 4343 times
Been thanked: 7534 times

Re: DIY conveyancing

#150265

Postby Dod101 » July 5th, 2018, 4:46 pm

I heartily agree with CK re getting advice (especially when you do not know yourself!) :D

This seems to be a prime example of complicating matters when there is no need, sorry to say.

Dod

TaurusTheBull
2 Lemon pips
Posts: 113
Joined: November 4th, 2016, 11:41 pm
Has thanked: 3 times
Been thanked: 178 times

Re: DIY conveyancing

#150363

Postby TaurusTheBull » July 6th, 2018, 2:21 am

Thanks for the replies. As ever, they do not take into account the full facts and circumstances.

1. Neither my Probate solicitor nor her colleague Conveyancing solicitor mentioned this was possible. So much for getting what you pay for!

2. The SDLT paid was minimal, less than solicitors charge for an hour's work.

3. As with any overpaid tax, I intend reclaiming, since the process remains incomplete..

Cheers

Dod101
The full Lemon
Posts: 16629
Joined: October 10th, 2017, 11:33 am
Has thanked: 4343 times
Been thanked: 7534 times

Re: DIY conveyancing

#150371

Postby Dod101 » July 6th, 2018, 7:12 am

TTB

The advice here may still be incomplete because of course it is very difficult to give definitive advice when not all the facts are not (and probably cannot be) made available on a Board such as this. As I know personally, it is also very difficult to deal with legal matters from a distance and when you cannot just nip round to the solicitor and ask him/her about something. Face to face is so much easier than phone calls or emails, but over the years I have learned never to be afraid of querying lawyers, particularly conveyancing solicitors. They tend to be junior and i9nexperienced in bigger firms and in my experience are assigned that task because it is regarded as routine and straightforward in the main.

Dod

Clitheroekid
Lemon Quarter
Posts: 2858
Joined: November 6th, 2016, 9:58 pm
Has thanked: 1385 times
Been thanked: 3771 times

Re: DIY conveyancing

#150436

Postby Clitheroekid » July 6th, 2018, 11:34 am

TaurusTheBull wrote:Thanks for the replies. As ever, they do not take into account the full facts and circumstances.

Unfortunately, we can only provide answers on the basis of the information supplied.

... over the years I have learned never to be afraid of querying lawyers, particularly conveyancing solicitors. They tend to be junior and inexperienced in bigger firms and in my experience are assigned that task because it is regarded as routine and straightforward in the main.

The large majority of conveyancing these days isn't carried out by solicitors at all. Because of cut throat price competition most of it is done by people with no qualifications at all (so called `paralegals') or by licensed conveyancers, who have little or no legal knowledge outside actual conveyancing.

One of the problems that's arisen from the demise of the general practitioner solicitor is that many solicitors, particularly younger ones, lack knowledge of any area outside their own specialism. For example, as in this case, a probate solicitor may have little understanding of conveyancing and vice versa. One danger of this is not recognising when input from a different specialist is required.

The whole drive to specialisation has been a complete fiasco, driven by the Law Society. They have attempted to make routine legal work look much more complicated than it actually is, so as to help solicitors justify charging high fees. They have therefore managed to give the impression that if you need to sell a house you must go to a specialist conveyancing solicitor, or if you want to make a Will you need a specialist Wills and probate solicitor.

In fact, a good solicitor is quite able to cover a range of areas with competence, and that used to be the norm for High Street GP solicitors. The majority of everyday work is fairly straightforward and repetitive, and where it's more complicated they can always turn to m'learned friend, much as a GP doctor will refer a patient with a difficult problem to a consultant.

Unfortunately, it's becoming virtually impossible to run a general practice, as professional indemnity insurers have swallowed the Law Society propaganda, and now see GP solicitors as dangerous mavericks, dabbling in areas they don't understand. They therefore set the premiums for GP solicitors at a level that makes it uneconomic to practise, thereby driving them out of business.

This has caused `legal advice deserts’ to have arisen. GP firms tended to be small, often sole practitioners, who were often found in small towns, and provided the only source of legal advice in those towns. As they are gradually closing and not being replaced there are many towns now without one practising solicitor in them. Large firms, which are becoming the norm, are often not really interested in the dull, routine work that High Street solicitors do, so people are left without any form of legal advice.

Of course in some cases the internet can be a source of such advice, but as illustrated here an online source can only react to what’s put in. It’s no real substitute (at least for the time being) for an actual conversation with a practising solicitor. And it’s also the case that many elderly people either don’t want to or can’t effectively obtain advice online.

It's quite ironic that nobody has a problem with doctors practising as General Practitioners, even though they're dealing with issues regarding life and death, whereas lawyers are effectively debarred from doing so.

Rant over! ;)

TaurusTheBull
2 Lemon pips
Posts: 113
Joined: November 4th, 2016, 11:41 pm
Has thanked: 3 times
Been thanked: 178 times

Re: DIY conveyancing

#150452

Postby TaurusTheBull » July 6th, 2018, 12:22 pm

Thanks again, I agree with all the comments.

Conveyancing shouldn't have been relevant in this case. I specifically told the Probate solicitor (or paralegal) that it was my intention to acquire the whole of my father's house, and she gave me no indication that this could be resolved within the estate. Although that was the basic coverage (so only £200 in VAT !!), I feel I was let down in that no advice was given in this matter.

After an initial enquiry with her conveyancing associate, I decided to investigate the matter myself, not easy when I am rarely in UK and have a co-executor (bless him) who has zero practical (but plenty of financial) interest in anything to do with paperwork.

Thanks again, and sorry if some think I have created a needlessly long thread, but if nothing else, it has educated me.

The tax clawback is actually worth less than the subsequent saving at Land Registry involved in a simple name transfer from my father's name to myself.

Cheers
Taurus

TaurusTheBull
2 Lemon pips
Posts: 113
Joined: November 4th, 2016, 11:41 pm
Has thanked: 3 times
Been thanked: 178 times

Re: DIY conveyancing

#178208

Postby TaurusTheBull » November 5th, 2018, 12:24 pm

Hi,

Thanks for all replies. Issue resolved after recent UK visit.

1. HMRC returned stamp duty, plus interest, after I explained that, partially due to lack of Probate solicitor guidance (who said you get what you pay for?), it wasn't necessary for me to buy half of my father's house, as it was covered by his estate.

2. AP1 and AS1 completed and signed off by myself, brother (co-executor) and a witness to our signatures. Cost £80 to update register from my father's name to mine, twice that charged to "businesses" (i.e. solicitors).

3. Land Registry contactable by email, just as well as it's almost impossible to see them in person. Forms hence sent by recorded delivery. Process questions answered by email but all else directed to the "seek legal advice" bin.

4. As with HMRC, cover letters accompanying forms seem to be ignored. Fees are cleared before any processing occurs. I asked Land Registry to inform me of progress or completion by email, since I would not be in UK to receive mail. This didn't happen, and I only found out at the weekend due to hassling them by email, which isn't an option with HMRC. Processing took 15 days, commendable but ours was the simplest possible transaction.

Hallelujah!
Taurus


Return to “Legal Issues (Practical)”

Who is online

Users browsing this forum: No registered users and 8 guests