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Covid-19: Wills & Probate points in the current climate - Legal News Skip to main content

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Byron Jones, Cardiff University

Byron Jones

Head of the Centre for Professional Legal Studies, Cardiff University

If you or your firm undertakes wills and probate work much of your attention recently will have been on how to manage the difficulty of signing wills in accordance with the requirements of section 9 of the Wills Act 1837, at a time when we are meant to be applying appropriate social distancing measures.

Professionals involved in the making of wills are regarded as essential workers, so are not prohibited under government restrictions from continuing to make wills for clients, but obviously must do so safely.

Section 9 requires the testator and witnesses to sign the will in each other’s presence, which suggests a face-to-face gathering, rather than one on Skype or Zoom. Also, the will must be signed by at least three persons, so there are issues around several people handling the one document and having separate pens for signing.

The Ministry of Justice is considering a possible temporary relaxation of the rules, but as of the time of writing nothing has been announced and it is looking increasingly likely that no changes will be made.

Turning to probate work, here are some points for firms dealing with the administration of estates:

  • Although there is no online process for completing the inheritance tax account (IHT400), it is now possible to submit IHT400 without the form being signed by the personal representatives. Instead the probate practitioner should add a standard statement to indicate that the PRs have read the account and approved it.
  • HMRC are not currently accepting payment of IHT by cheque, so payment must be by electronic transfer, or by utilising a direct payment scheme out of the deceased’s assets.
  • In March, statements of truth were replaced by standard probate application forms for paper applications made by professionals. The Probate Service has indicated that the forms do not need to be signed by the applicants – electronic signatures, including typed signatures, will be accepted. However, the Probate Service is encouraging professionals to register for the online application process, so that probate applications can be submitted via the portal. Firms will first need to set up a payment account before being able to apply online.
  • Currently, it is still necessary to send the original will to the Probate Service, but it may be that the Probate Service will ask firms to send scanned copies of the will with the application, and send the original will to the Probate Service at a later date.
  • We have seen reports of how charities are struggling financially during the lockdown. If you are administering an estate where there are charitable beneficiaries, perhaps consider whether interim distributions can be made safely to those charities, without prejudicing the position of the personal representatives.
  • Similarly, many self-employed people have had to shut their businesses and have no income, and employees have lost their jobs or have been furloughed. It would be worth considering whether interim distributions could safely be made to individual beneficiaries too, to help ease their financial situation.

Lastly, we have all been saddened, not just by the overall number of deaths from Covid-19, but also by the number of NHS staff who have lost their lives during the pandemic.

The UK Government has recently announced a payment of £60,000 to the family or estate of each NHS worker who has died due to the coronavirus. What might be overlooked by probate practitioners is the possibility of claiming a very valuable inheritance tax exemption, which was introduced in 2015. Section 153A of the Inheritance Tax 1984 exempts from IHT the whole estate of (and any previous lifetime transfers made by) an ‘emergency responder’ who dies due to a disease contracted when responding to ‘emergency circumstances’.

It is far from certain, but the definition of emergency circumstances could include the situation that NHS staff have faced in dealing with the pandemic.

If you are assisting with the administration of the estate of an NHS worker who has died, the possible availability of this exemption should therefore be considered.

It might also be important that Covid-19 is listed as one of the causes of death on the death certificate.

There is anecdotal evidence that some doctors are reluctant to do this, but potentially it could make a big difference to the estate of a deceased NHS worker.

Byron Jones, Cardiff University

Byron Jones

Head of the Centre for Professional Legal Studies, Cardiff University

Byron is the Head of the Centre for Professional Legal Studies at Cardiff University, which delivers the Legal Practice Course, Bar Training Course, the conversion course for non-law graduates (the Graduate Diploma in Law), and a range of short courses for the profession (such as the Magistrates Court Qualification for duty solicitors). He is a specialist in Private Client work, and is a member of the Cardiff and District Law Society’s Council. Byron is a member of the Law Society’s Wills and Equity Committee.