Pre-application matters

Jurisdiction in probate matters

The High Court has jurisdiction in relation to applications relating to probate and letters of administration. The probate jurisdiction of the High Court is divided between the Family Division, which deals with non-contentious probate business and the Chancery Division (and county court) which deals with contentious or solemn form probate business.

For information on the distinction between common and solemn form probate, see Practice Note: What are common and solemn form probate?

The rules that govern non-contentious probate practice are the Non-Contentious Probate Rules 1987, SI 1987/2024 and the fees are contained in the Non-Contentious Probate Fees Order 2004, SI 2004/3120 (NCPFO 2004). The NCPFO 2004 has been amended and updated several times.

While previously there were no territorial limits on the jurisdiction of any particular registry, the requirements are stricter following the reforms to the probate service and the introduction of the paper application forms PA1P and PA1A for practitioners from 23 March 2020 and the rolling out of the online application service for practitioners. Certain probate applications must now be made online, whereas practitioner applications made by paper should be sent to Newcastle

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All in? Court confirms when a settlement is 'made' for the purposes of excluded property (Accuro Trust (Switzerland) SA v The Commissioners for HMRC)

Private Client analysis: This case considered the meaning of 'relevant property' under the settlements regime of the Inheritance Tax Act 1984 (IHTA 1984) and, in particular, the time at which this definition is to be tested. The question arose as to whether the trustees of an offshore trust established by a non-UK domiciled settlor were subject to the UK settlements regime in respect of property added to the trust after the settlor became deemed domiciled in the UK, or whether they were exempt from such charges as the trust consisted solely of excluded property. The First-tier Tribunal (FTT) held that whether trust property is excluded property is based on the status of the trust at the time that it was established, not at the time that the property in question was added to the settlement. As a result, the trust in this case did consist solely of excluded property and no inheritance tax (IHT) charges arose as a result of either the ten-year anniversary or capital distributions. The FTT was also asked to consider whether their jurisdiction was appellate, or supervisory only. The FTT held that, while their jurisdiction was supervisory, the questions raised by the trustees were relevant in establishing whether HMRC had acted reasonably and that the outcome (ie that the paid IHT should be refunded and that no further IHT was due) would be the same in either case. Written by Katherine Willmott, senior associate solicitor at Foot Anstey LLP.

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