How to Apply for UK Grant of Probate (Marilyn’s story)

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How to Apply for UK Grant of Probate (Marilyn’s story)

One of our clients was so frustrated by her experience trying to apply for UK Grant of Probate after her husband died that she wrote this article to help our clients, and also the instructions at the foot of the article. I am sure many readers are going to be eternally grateful to her. Thank you Marilyn!

Her story begins….

“More than four months have now passed since Robert died during which time my solicitor in London arranged for the original Will to be translated with Apostille at the request of a notary (who was recommended as renowned and who was au fait with English law).  (Wrong information, waste of time and money – see below)

On presentation of the aforesaid, I was subsequently asked to apply for Grant of Probate.  (now my journey begins!)

I sought advice from up and down the country in the hope of finding a loophole but all I received were astronomical quotes (must have thought I had just landed at Dover in a dinghy!)  It was not so much the money but contradictory information plus fear of losing the original Will in transit, in view of the fact that the Spanish required the original Will. (Or so I was given to understand)

Had I not had my head buried in the sand during the time of Robert’s illness, I would have seen that in 2015 it was necessary for all Wills to be drawn up in Spain clearly stipulating within the Will “English or Spanish law”.

From the beginning, all advice from Spain and England confirmed that an English Grant of Probate could only be obtained with an English Will, if requested.

Then I receive this (note the sender):

“Dear Madam

Thank you for your email.

Obtaining a Grant of Probate is not a legal requirement and is only necessary if banks/building societies or other institutions request it. (We already know this don’t we?)

If it is deemed necessary to apply for a Grant of Probate, please confirm whether the deceased died domiciled in Spain or if he intended to return to the UK.  (Now the conundrum of domicile/residency)

If he died domiciled in Spain, you should apply through the Spanish courts for Probate or similar inheritance certificate.  (I sought advice on this important issue and was duly informed that if, a big if, such an application were possible, the cost would certainly have bankrupted me.  Another contradiction.  English Will with English Probate or Spanish Will – FACT.  (Somebody help me now!)

Kind Regards.

…….

Oxford District Probate Registry | HMCTS | Combined Court Building, St Aldates  Oxford  | OX1 1LY

DX 96454 Oxford 4

Phone: 01865 793050

Web: www.gov.uk/hmcts

 

And then this:

HMRC told me that as Robert was living in Spain 4 years prior to his demise he is classed as being domiciled in Spain therefore I am to apply for a Grant of Probate here in Spain which a gestor said the cost would be astronomical if indeed such an application were possible.  Then someone else at HMRC states that because Robert was born and bred in London and worked all his life paying tax etc, he was domiciled in the UK.  Next thing I hear is that you cannot get Spanish Probate on an English Will.  FACT.

I then found out that Probate can be acquired on line without having to be present for signature.  This way I can glean a better understanding of what exactly is required.  Umh, I liked the idea, sounds straightforward. (me thinks!)

Initially, I was given the wrong information by an assistant to the notary referred to above who, I hasten to add, was very helpful although misunderstood my situation about ownership of property in Spain.  After three months later little progress was made.

The following is an email to the notary’s assistant who asked me to have Robert’s Will translated with Apostille.

“Dear …. – kindly pass this on to the Notario for consideration:

I now have a better understanding of what is required to complete matters after some extensive research.  Spanish Will OR English Will with English Grant of Probate plus Apostille, although I have asked on many occasions in the past if Spanish Wills were required but the answer was always “no” as there was no ownership of property or any other assets other than a joint Spanish bank account.

I have been in touch with the Government HMRC IHT Department in England who advised me of the appropriate forms I have to complete.  They in turn gave me details of the Principal Registry in Central London to whom I have to send the forms (if straightforward) plus relevant documentation to obtain the Grant of Probate.

This is what the Principal Registry conveyed to me:

They request ORIGINAL Will plus two photo copies.  They do NOT return the ORIGINAL Will; it is kept on record with the Registry in Central London.  THEY DO NOT DO APOSTILLES.  They SEAL and CERTIFY a copy (or copies) for return.  I explained that the ORIGINAL Will is required here in Spain with Apostille in order for a search to be made at the Registry in Madrid for tax purposes.  I repeat, they keep the ORIGINAL Will and do not do Apostilles, only copies sealed and certified.”

 

After a couple of days without response, I email explaining time is running out, also pointing out that receipt of Grant of Probate alone will take around a month from the time of posting from Spain and return, thereafter applying for Apostille in another part of England.  She immediately replied asking me to attend her offices.

 

This is what she said:

The original Will is NOT now required in my particular case to which I immediately asked for her absolute assurance on this point (as once gone, never to return).  Most definitely she replied, this confirmed by the notary for her to convey to me.  The bank (or anyone else) insist on Apostille on the Grant of Probate which must be translated into Spanish (processed here once received).  She apologised over and over again for initially misunderstanding my circumstances.  (£250 down the drain)

 

She further explained that it is NOT now necessary to incur the expense of a notary but instead recommended a gestor in Roses capable of carrying out this small “deed” (could have told me three months ago I thought!) in preparing an official letter for the bank.  Before this can be done, the translated Grant of Probate with Apostille has to be presented to the Registry in Madrid in order for them to determine the amount of tax payable (if applicable).  The letter will then be drawn up for the bank to prove the tax has been paid and all will be happy!

(Back to the drawing board) as follows:

HMRC IHT forms typed on PDFs (all on line)

https://www.tax.service.gov.uk/inheritance-tax)

 

Telephoned HMRC: (0044) 300 123 1072 – Mon-Fri 10-4.  I stated my circumstances and was told to complete forms PA1P and IHT205 and send them to:

London Probate Department Principal Registry of the Family Division

First Avenue House, 42-49 High Holborn

London WC1V 6NP

Tel: (0044) 207 421 8509

 

Check list:

 

Completed appropriate forms (make no mistakes or all will be returned – 2,000 mile return trip)

Original Will (which will NOT be returned but retained at the Registry)

Two unstapled copies of Will (original not to be unstapled or tampered with)

(State how many copies of Grant of Probate required – 50p each)

If estate is under £5,000 – nil to pay.  If over £5,000 – £215

Original Death Certificate (will be returned)

A4 addressed envelope for return of documents (sent by 2nd class post only by them)

Retain copies of everything sent.

 

Ready to go?  Not quite.  To add even more confusion, this is what a top IHT manager, had to say about my individual case:

“If in England, this would have been put to bed immediately.  (We already know this)  He explained the difference between domicile and residency.  One can be resident anywhere in the world but if you were born and bred, worked all your life, etc thinking that one day you may wish to return to your place of domicile (nobody actually asks this question, he says) then you state that on form IHT205.  If you do not, the alternative involves a different form plus schedules.  Residence is a place you choose to live for however long you wish to live in that said place.  You can have more than one residence, but only one domicile.  Residence is of a more temporary nature compared to domicile.”

Once in receipt of Grant of Probate(s) complete the appropriate form for Apostille https://www.gov.uk/get-document-legalised.  Follow, paying on line.  £30 for each Apostille to Grant of Probate plus £14.50 for safe registered return of post (something the Registry will not do).  For help: Tel: 0044 370 000 2244 – Mon-Fri 10-4 pm and send the Grant of Probate(s) to:

 

Legalisation Office

Foreign & Commonwealth Officer

Hanslope Park

Milton Keynes

MK19 7BH

(Different addresses for different Registries)  Alternatively, personal collection can be arranged.

So you think it’s all over?  Not here in Spain!

Every legal body I contacted in Spain and in England informed me that as I have the original certified Will with Apostille plus translation, and as I am the sole executrix and beneficiary, this should be enough to satisfy the bank in view of my particular circumstances.  (We know this also – yawn!)  But I live in Spain, not in England and I must adhere to the laws of the land.  Spanish notaries have even suggested I close the joint account and open a new account at another bank.  I want to stay with my bank; besides, I cannot do anything underhand.

 

Back to the forms.  These were not as straightforward as I thought. I completed PA1P (this is the form for the Registry) accompanied only by IHT205.  Any other form has to be sent to HMRC, BX9 1HT.  I spent two weeks on the telephone to HMRC and the London Registry for clarification on one or two points.  After a couple of weeks talking to six different people informing me that IHT205 was the correct form, I was told by a seventh person, L….. that as Robert had no SOLE assets in the UK, (joint does not count) I had to complete IHT400, IHT401, IHT404, and IHT417 to be sent to HMRC (PA1P going to London Registry).  Confused.com?  Give up?  No chance.  L… said she would report this.  (Yeah, and pigs might fly)

At last, I thought I had reached the end of my ordeal.  Here I was one evening, after two weeks on the phone up until 2.00 a.m. checking, rechecking, printing off copies, writing the cheque, addressing and self-addressing the special envelopes I bought in readiness for the post office the next day by special delivery.  Then my heart sunk when I noticed on the front of form IHT417 “fill in this form if the deceased was domiciled in the UK”.  Ouch!  And this after establishing that Robert was after all domiciled in Spain!

 

I now decided to complain about the people on the other end of the telephone at HMRC who have scant knowledge of IHT forms.  (I will not give up)

 

Next stop?  Government Gateway on line.  Once interrogated, I stated my complaint:

 

For two weeks or more I have constantly been on the telephone to your department for clarification on IHT forms.  Calling from Spain is not cheap.  I have spoken to six people, all very helpful and responsive but contradictory.  I was advised to complete form IHT205, then IHT400, then back to 205, and again 400, etc etc etc.  My head was spinning until today around 12.00 noon today your time L… emphatically confirmed that I now have the correct forms and to make absolutely sure, we went through the forms number by number, point by point.

 

If these are not the forms then I will join my partner who is at peace now but I am not!

 

One week later “top gun” B…. from Government Gateway (now we’re talking!) telephoned and after going through the forms box by box he confirmed that all was correct but I had my doubts as he was hesitant on one or two points and my suspicions were confirmed when after I put the phone down I noticed yet another discrepancy/contradictory, in particular funeral expenses.  One form stated in the UK, the other stated outside the UK.  (Have another glass of wine!)

 

I fell ill round about this time with bronchitis and infection, putting matters on hold for a couple of weeks.

 

Contemplating whether to send the forms, as I was not entirely happy and so worried about losing the original Will, a letter came for Bob which was standard for all and sundry from anywhere around the world targeted at property ownership, rental earnings, etc for tax purposes.  Obviously, this did not apply to us.  It means going to the bank and signing a form, failing which all bank transactions cease in two/three months.  So now I have to go to the bank!

 

It was a Friday.  A good day I thought. I waited in the bank for over an hour to see F….. the friendliest out of the bunch and who was very popular having worked at the bank for a very long time.  He eventually came over to me and said he could not attend to me today but asked me to come the following Wednesday.  I showed him the letter and a glimpse of the death certificate but he immediately told me not to worry, all will be well.  On the Tuesday, F……. telephoned to ask if I could attend on Friday.  Not well at the time with a hacking cough, this suited me fine.

 

Friday, 1 February.  I am now sitting opposite F….. who shook my hand.  He did not ask me for anything although I was loaded with documents.  He immediately gave me a new account in my sole name and printed out copies of the details for all the utilities.  He said he will keep the joint account open and put so much in the new account until such a time that all outgoings/incomings are settled.  I was speechless!!!

 

As I left the bank, I thought about all the scaremongering apropos the freezing of joint accounts once they had sight of the death certificate, hard-nosed, never budged an inch, unsympathetic, sick with worry, sole decision making, endless phone calls and emails, sleepless nights, the list is endless.  Now this would have been a time to jump for joy and run home to Bob and tell him the good news to which he would have replied “well done sweetheart”.  Not any more!

 

To cheer me up even more, I received notification from the Tax Office showing the amount of tax Bob owed for tax year 2013-2014 amounting to the grand total of 40 pence, yes £0.40.  I looked up in the sky and told Bob to come down and pay this outstanding amount before they locked him up.  I rest my case!

THE END”

 

Application for Grant of Probate

 

Please read FACTS (below) prior to contacting HMRC/Principal Registry.

 

HMRC IHT forms typed on PDFs (all on line)

https://www.tax.service.gov.uk/inheritance-tax)

 

Telephone HMRC: (0044) 300 123 1072 – Mon-Fri 10-4.  State your case and you will be advised of the appropriate forms to complete, confirming the address below:

London Probate Department Principal Registry of the Family Division

First Avenue House

42-49 High Holborn

London WC1V 6NP

Tel: (0044) 207 421 8509

 

Check list:

 

Completed appropriate forms (make no mistakes or all will be returned – 2,000 mile return trip)

Original Will (which will NOT be returned but retained at the Registry)

Two unstapled copies of Will (original not to be unstapled or tampered with)

(State how many copies of Grant of Probate required – 50p each)

If estate is under £5,000 – nil to pay.  If over £5,000 – £215

Original Death Certificate (will be returned)

A4 addressed envelope for return of documents (sent by 2nd class post only by them)

Retain all copies sent.

(Before sending original Will, make absolutely sure it is not required in Spain)

 

FACTS:

 

Domicile/Residency

 

One can be resident anywhere in the world but if you were born and bred, worked all your life, etc thinking that one day you may wish to return to your place of domicile  then you state that on form IHT205.  If you do not, the alternative involves a different form plus schedules.  Residence is a place you choose to live for however long you wish to live in that said place.  You can have more than one residence, but only one domicile.  Residence is of a more temporary nature compared to domicile.

 

Deceased’s assets

 

Only complete IHT205 if the deceased has no sole assets in the UK (joint assets do not count).  A point which will become clear once you initially seek advice from the Principal Registry/HMRC.

 

Once in receipt of Grant of Probate(s) complete the appropriate form for Apostille https://www.gov.uk/get-document-legalised.  Follow simple instructions, paying on line.  £30 for each Apostille to Grant of Probate plus £14.50 for safe registered return of post (something the Registry will not do).  For help: Tel: 0044 370 000 2244 – Mon-Fri 10-4 pm and send the Grant of Probate(s) to:

 

Legalisation Office

Foreign & Commonwealth Officer

Hanslope Park

Milton Keynes

MK19 7BH

(Different addresses for different Registries)

 

NOTE:       If your wealth is modest, then the above is the best course of action.  Beware, there are so many parasites out there in England ready to prey on the most vulnerable quoting astronomical fees.  Once in receipt of the Probate(s) with Apostille(s) please contact Amanda Thomas at Spanish Solutions:

www.spanishsolutions.net
email:  enquiries@spanishsolutions.net.

Tel. +34 966761741 Fax. +34 966773238 C/ FLORES, 3 – Bajo C – La Zenia II 03189 – Orihuela Costa

FACEBOOK: http://www.facebook.com/pages/Spanish-Solutions-Legal-and-Tax/337703269612171

 

Amanda’s note: Spanish Solutions have only experience of Spanish Probates, but we do think that this is going to be helpful to a lot of people in the future, who will have Marilyn to thank.

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