Wills Flashcards
What order should you deal with passing of assets when someone dies?
- Does anything pass independently?
- Do they have a will?
- Is their will valid?
Where are the intestacy rules set out?
Administration of Estates Act 1925
What property passes outside the will and intestacy rules?
- Joint property
- Some insurance policies
- Pension benefits
- Trust property
When does property pass outside a will?
Joint beneficial tenancy.
Passes under survivorship.
What type of life assurance policy passes to the estate?
Simple life assurance policy
Passes to estate and PRs distribute according to will/intestacy rules
(i.e. doesn’t pass independently)
What happens to a life assurance policy (form of insurance) written in trust for benefit of beneficiaries?
Paid to the named beneficiaries, regardless of will/intestacy rules
Still passes with their estate
(think ignore that for now ^)
General position where pension scheme pays benefits for an employee who dies in service?
Trustees of sum pension fund (investors etc.) pay lump sum to family/dependents at their discretion
Do independently of will/intestacy rules
When would pension benefits go under will/intestacy rules?
If pension scheme provides that lump sum must be paid to their PR
(rare)
What happens to trust property which a testator is a beneficiary on upon death?
Life interest
passes on death.
Devolves under terms of the trust and NOT WILL/INTESTACY.
What is a revocation clause and should they always be included? Explain why/why not.
Revokes former wills. Yes, avoid searching prior wills after death.
(“I revoke all former wills, codicils and testamentary dispositions”)
How should provisions specifying how want body to be disposed of be followed?
No legal effect - up to testator to make people aware of wishes.
but still inc in will if testator asks
What is a grant of probate and how do you get one?
Confirmation that a will is valid and executor has authority to act
Apply to Her Majesty’s Courts and Tribunals Service Probate
What does an executor do?
- Collect assets
- Pay debts and any inheritance tax
- Distribute remaining assets to entitled under will
Does an executor need to be named in a will?
Yes - will be an administrator if not
What is a gift of legacy?
gift of personalty
i.e. personal property
also covers realty (aka devise)
i.e. real estate
What is a gift of realty?
gift of real property (land and buildings on any land)
(e.g. gift my home)
aka legacy
How can gifts in a will be classified (beyond realty and personalty)?
- Specific
- General
(out of this account) - Demonstrative
(find it) - Pecuniary
- Residuary
(S - GDPR)
What is a specific gift?
Of a specific item which testator owns and is distinguished in will from rest of their assets
(e.g. my rolex)
What is a general gift?
Item(s) corresponding to a description
If they didn’t own at time of death, executor must obtain using funds from estate
e.g. 100 shares in X plc to my son - must be purchased
(the GENERAL told me to go and find it)
What is a demonstrative gift?
General in name but directed to be paid from a specific fund
e.g. £500 from my Santander savings account
Classed as specific if ENOUGH money to pay but if no account and so paid from estate, classed as general
Pecuniary gift
Gift of money.
Can be specific (e.g. £100k to X) or general (£100k)
What’s a residuary gift?
For residue of estate i.e. all remaining money and property
Usually most substantial gift in will
Requirements for a valid will
- Capacity
- Intention
- Formalities
(CIF)
The main thing to demonstrate capacity to make a will?
(before consider any case law)
- Over 18
- Requisite mental capacity
Which case set out requisite mental capacity for testators?
Banks v Goodfellow
(little MC fellow)
Capacity test / B v G
MMU delusion
- Moral claims
Considered any moral claims - Memory
Know nature and extent of their property (roughly speaking) - Understanding
Nature and effect of docs being signed - Not suffering some delusion of the mind
Case re exception to general rule on capacity
Parker v Felgate
Will it matter if lost capacity by time signed will?
(Parker v Felgate)
Dm as long as:
- capacity at time instructed
- understand signing will complies earlier instructions
- instructions to solicitor
- who prepped will in accordance with them
(at time instructed EOD b parks i had and also was a sol at the time)
What happens if mentally incapable of making a valid will?
Statutory will can be made on their behalf under MCA
Authorised person (CoP) would execute the will and CoP attaches seal (i.e. makes enforceable)
CoP need lots info re deceased/previous wills/family/property and only approve if in best interests
What is the golden rule re capacity?
If in doubt ask medical professional to:
1. provide a written report confirming has TESTAMENTARY CAPACITY; and
2. witness the will
Solicitor should record their own view (and all docs) of capacity on file in case queried
(golden like al)
General rule on burden of proof to prove will is valid?
Person asserting a will is valid to prove it
(executor)
when will presumption capacity arise?
Yes, if:
- Will is rational on face of it; and 😶
- No signs of mental confusion/raise doubts 🤨
Who is the burden of proof re capacity on?
PRs
Discharged if rational on face of it and no signs of mental confusion
Then flips to person challenging
Factors inc likelihood court finding capacity
- Rational
- Experienced and independent solicitor (met and explained)
- Report or witnessing medical practitioner
What constitutes meaning of intention for wills?
Intended to make
- a will
(not other doc) - this specific will
- knew and approved contents
What is the rule for burden of proof re intention?
Executor / administrator must prove
Usually presume knowledge/approval (and therefore intention)
Unless BSFM
(suspicious, mistake, fraud/force/fear/undue inf, blind/illit)
When is a testator presumed to have intention?
- capacity 🧠
- read and executed the will ✍️
When will the presumption of intention not apply?
- blind/illiterate/ not signed personally (e.g. broken hand) (BIP)
- Suspicious circumstances
- Force, fear, fraud and undue influence
(und inf is duress) - MISTAKE
B, S, F, M
What require if blind/illiterate/not signed personally?
HMCTS require evidence to prove knowledge and approval before grant of probate
What should you inc in will if blind/illiterate/not signed personally?
Statement at end of will
Read by testator who knew and approved the contents
Examples of suspicious circumstances and who must prove intent?
Prepared by someone who would be/relative of major beneficiary
Solicitor benefits and not got independent advice/limited intelligence
No evidence of reading/explained will
BoP: person seeking to argue it is valid
(eg the major beneficiary)
In what circumstances can you disprove intent, even though they have known and approved?
Force or fear (actual or threatened injury)
Fraud (eg after being misled)
Undue influence (coerced but their judgment remained unconvinced)
FFFU
What is the most difficult and risky on FFFU?
Undue influence
aka duress
Not just persuasion
Have to prove it - so need evi from family, friends and carers.
Serious allegation so insufficient evi = costs.
What happens if mistake in will?
(Part or whole)
Presumption of knowledge and approval doesn’t apply.
Omitted from probate UNLESS misunderstanding as to true legal meaning of words used.
Two types of mistake in will and differences
- Actual (ie abence of knowledge and approval); and
- misunderstanding re true legal meaning of words used
Latter will not be omitted in grant of probate
Formalities of execution of will
Must be:
- In writing
- Signed
- Intended for signature to give effect to will
- Witnessed
(WSIW) - what sounds incredible wasn’t
What act sets out formalities for execution?
Section 9 Wills Act 1837
Explain the requirement that a will must be written in writing. How strict is this? What material should it be written on?
No restrictions on type of wording or materials
(Could be typed or handwritten)
(Doesn’t have to be on paper)
Is an electronic will valid?
No.
Too easy fraud.
Requirements for signature a will
Anything as long as INTENDS for signature to represent their name
e.g. Your loving mother
ALSO INCLUDES crosses/thumbprint
(eg illiterate and use thumb print - that is valid)
Provided intend for signature to attest will
Can another person sign a will on a testator’s behalf?
Yes:
- in testator’s presence
- at testator’s discretion
Must give POSITIVE AND DISCERNIBLE DIRECTION (verbal or non-verbal)
(e.g. too weak or injured hand)
Two stages to signature must be witnessed
- Testator signature acknowledged in presence of two witnesses
- Witnesses signature must be in presence of testator (but not of each other)
What constitutes presence for witnessing will?
- Mentally present (that testator is signing a document - doesn’t matter if not a will)
- Physically - see or be able to see testator signing (unobstructed line of sight)
If witness requirement not fulfilled, what is an alternative?
Acknowledgement of signatures
- witness or testator confirm that signature is theirs.
(e.g. testator signs in front of one witness, so not valid. but if testator acknowledges their signature in front of second witness and both witnesses then sign in testator’s presence, this is valid)
(e.g. W2 signs when testator leaves room to answer call. Valid if W2 acknowledges signature to testator)
Requirements re capacity of witnesses?
No formal requirements.
Capable of understanding significance of being a witness.
18 or over and not blind (seen separately)
What is the position if a witness is a beneficiary or spouse or civil partner of a beneficiary?
Will remains valid but their gift fails
Can you witness a will remotely?
Can u sign on testator’s behalf remotely?
Yes - video conference / other visual transmission
But only where testators signs will themselves
No not on behalf - must be in actual presence
Government guidance on remote witnessing (6 points)
Can u witness acknowledgement of a former will?
- Can’t witness pre-recorded videos
- Can all be at diff locations
- Testator must physically sign the will or acknowledge an earlier physical signature
- Will then taken or posted to witnesses
- Witnesses must physically sign in virtual presence of testator and if poss other witness (not electronic signature)
(all use date they are signing)
Exception to formalities (s9)
Privileged wills
Where:
- on actual military service
- seaman
Requirements for a privileged will
Any form, inc oral statement (s11 Wills Act)
Just intend to dispose of property after death
(e.g. “make sure Anne gets all my stuff” - valid)
General rule on burden of proof on whether a will is valid
when presumed?
Person seeking to argue that it is valid
But presumed if:
- Capacity: rational on face and no doubts mental confusion
- Intention: Read and executed
- Formalities: due execution if attestation clause
(^ presumptions are rebuttable)
When does presumption of due execution arise?
Attestation clause followed
(states formalities are followed)
(e.g. signed by testator in our joint presence and then by us in hers)
Flips burden to person arguing it’s not valid
What’s an attestation clause, inc what section is involved?
States that s 9 requirements for valid will complied with
Means presumed to be executed and flips burden of proof
What needed if will doesn’t contain an attestation clause?
affidavit of due execution
or witness statement verified by statement of truth
by
- witness; or
- anyone else present
OR
affidavit of handwriting evidence to identify signature
or refer case to a judge
What are solicitor’s duties when preparing wills?
- Clear instructions to clients explaining how to sign and witness
- Warn beneficiaries and those married to beneficiaries shouldn’t witness (s15)
- Good practice: Execute a solicitor’s office so supervised
- If at home, ask them to return and check it
(failure above could = negligence)
Who do solicitors have a duty to in advising on wills and implication of this?
Beneficiaries.
Means negligence liability.
What must you broadly consider to determine effect of gifts in will?
Actual wording used
What property they owned
Who the people named and described in the will are
Whether they survived the testator
What are the two basic presumptions which the court applies re wording in will?
(intention)
- Non-technical words bear their ordinary meaning
- Technical words are given their technical meaning
gift of personal estate construed as what?
Gift of personal estate - given technical meaning of personalty over realty
(for info this is re cook)
(also dont think super imp was example in textbook showing technical words give technical meaning)
If terms are several ordinary meanings (e.g. money could be coins and everything they own), what should the court do?
Consider it in overall context of the will
Can the two basic presumptions be rebutted?
(ie that technical words take technical meaning and non-technical take ordinary)
Yes if clear testator using word in different sense
When considering the ordinary meaning of words, what else will court consider?
Context and common sense
What is the basic rule on whether a a court look at additional evidence to try and establish a testator’s intention?
No
What happens if meaning of gift is unclear?
Fails for uncertainty
But remember courts apply context/common sense, even though generally don’t look at additional evidence - which may mean doesn’t get to this stage.
(external evi if ambiguous / meaningless (inc if other evi shows it is in context))
(ambiguous / meaningless and additional evi would assist = can use)
What are the exceptions to when a court will consider extrinsic evi to consider testator’s intentions?
- meaningless OR ambiguous OR evi shows language is ambiguous given circumstances
AND
- Evidence would assist in interpreting
(e.g. left all to his mother, who he knew was dead at time of drafting will, external evi showed he called his wife mother - fine)
What power does court have (and not have) to ensure a will reflects testator’s intention?
Can’t rewrite
But can rectify
When can a court rectify a will?
Satisfied that will expressed so that it fails to carry out testator’s INTENTIONS due to:
- A clerical error (e.g. misspelling/used wrong precedent/carried over info from old will); or
- Failure to understand testator’s instructions.
(baso when law firm’s fault)
If words are INCLUDED by mistake, what could court do?
Admit will to probate with those words omitted
Basic rule re when will be interpreted FROM?
Implication of this in terms of gifts?
As if executed immediately before death
So property they owned when died, regardless of whether they owned it at time will was made
speak from date of death
(bit crepy)
When does a will not speak from date of death?
Words which suggest contrary intention by referring to the present/time made will
Will defo be if “all property I own now”
If specific item/thing - “my eldest daughter” “my car” - courts interpret as date of will, unless is something which may increase or decrease in number
(e.g. “my collection of cars” - interp from date of death)
“my car” vs “my collection of cars” - how would they be interpreted?
My car = car owned at time of will. if don’t have, fails.
My collection = cars in the collection at date of death
If beneficiaries are given by name, how do you identify them?
Locate them, establish whether they survived the testator and if not, the effect of their prior death on the gift
Who are beneficiaries construed as being?
e.g. eldest daughter of Kate. eldest dies.
What testator intended in will / those alive then.
Unless contrary intention in will.
e.g. to my eldest daughter, two daughters - eldest died - goes to eldest’s estate.
If family are referred to a class of beneficiaries, wil step-children count?
Blood relatives
Step-children don’t count unless will states otherwise
What is the normal meaning of issue?
Direct descendants of any generation
(i.e. not just children but grandchildren etc also)
Who are adopted children treated as the issue of? Exception.
Their adoptive parents, and not in will of birth parents
But if the birth parents died adopted before interest vested, their interest will be unaffected
e.g. aged 2 birth parents die, will gives if reach 25, adopted aged 6 - then u get it.
Exception is if contrary intention in the will
the reason this took me so long is i didnt realise estate being vested meant parent had died
Are you entitled to gifts under succession rules to either parents’ estate if they are unmarried?
Yes
(e.g. even if you were born out of an extra-marital affair)
If born under Human Fertilisation Embryology Act, whose will are you a child under?
Legal parents
When would a transgender woman be allowed to claim gift in a will which addressed to female relatives?
If the will was made after 4 April 2005
If transgender person misses out on something under will due to their gender reassignment (i.e. they would have got it if hadn’t reassigned), what can they do?
Apply to High Court
Who can make an appropriate order if consider it just
(e.g. payment of a lump sum)
(J high)
What are trustees/PRs protected from re transgender beneficiaries?
- INVESTIGATING whether *gender recognition certificate issued or revoked before distributing; and
- Liability for distributing without considering the above ^ been issued/revoked
What could a beneficiary do if lose out because gone to someone transgender who didn’t have certificate
Follow the money or property representing into their hands
UNLESS purchased it for value and no notice + good faith
Would a gift to John’s wife be a gift to John’s civil partner?
No
What is the basic rule if a gift fails?
Goes to residuary estate
(ahh I always get this wrong!)
What if a gift of residuary estate fails?
Partial intestacy - so it will pass under intestacy rules
What are the ways in which a gift could fail?
- Uncertainty
- Beneficiary witnesses will
- Divorce or dissolution
- Ademption
- Lapse
- Disclaimer
- Forfeiture
When will a gift fail for uncertainty?
Exception to this where court would say no!
Wording not allow identification of beneficiaries or subject matter and Court cannot establish intention
Exception for charities - provided clear it is for charitable purposes, Court can pick a charity
When will a gift to a witness beneficiary still be valid?
- Codicil confirms the original will and is not witnessed by the beneficiary
- The will would still be valid even if the beneficiary hadn’t signed it
(e.g. three witnesses)
If marriage is divorced or dissolved (e.g. annulment) after will, would ex have any entitlement?
No. Passes as if spouse died on date of divorce/dissolution.
(applies to gifts and them being an executor)
(e.g. substitutional gift that if husband dies, goes to kids takes effect takes effect)
What is ademption and how does it differ from lapse?
Will a gift be adeemed if uncertain?
Ademption: fails because no longer own that specific property at death
(adem. property. gaml.)
Lapse: beneficiary predeceased
Nope - that just fails for uncertainty - different thing
If an asset has been retained but changed in nature, does ademption apply?
(e.g. specific gift on company shares but that company since taken over by another)
Depends
Is the asset SUBSTANTIALLY THE the same (ie merely changed in name or form) or
Changed in substance (meaning adeemed)
Will a gift be adeemed if replaced it?
e.g. my car - replaced
e.g. my pearl necklace
e.g. my jewellery
If of specific item, presume adeemed:
- MY means the one at execution
(had a ford, now a ferrari, no Ferrari)
^ this interpretation can vary. may consider value and circumstances.
If capable increase and decrease (e.g. my jewellery) - assume what satisfies at death - even if all replacements
(e.g jewellery robbed, replace it, take that)
(but if said my pearl necklace, would have adeemed)
^ ALL unless can show contrary intention.
What is a codicil?
Document adding to or amending a will.
Updates original will. Must be read in conjunction with original will.
Must be executed in same way as will.
If gift lapses, where does it go?
If beneficiary dies before the testator, goes into the residuary estate
If the gift was to the residuary estate already, then intestacy rules apply
When would a gift lapse but usual rule not apply
- substitutional gift (if X dies, give it to Y)
- contrary intention (e.g. worded in will so that goes to holder of position)
- Section 33 Wills Act applies (they have issue who it passes to)
(lapse = predeceased)
What does it mean if a gift vests on testator’s death?
Provided beneficiary survives (even for short amount of time), it takes effect
If they die - goes to their estate
Section 184 LPA 1925 - If deaths of testator and beneficiary close together and cannot establish order of deaths…
Eldest deemed to have died first
What is a survivorship clause?
Gift fails if beneficiary does not survive X days after death of testator
Usually 28 days
Can apply to all gifts in the will
(otherwise would go to the other deceased’s estate)
If gift made to two parties and one dies, what happens? What is the exception?
- class gift?
- Jointly?
The other party receives the whole gift.
(e.g. A and B jointly, A dies - all goes to B)
(state this in will if testator says they are to own jointly)
Unless words of severance ie gifted separate amounts
(e.g. equal shares)
Deceased parties’ share would lapse and pass under intestacy rules unless substitutional gift
If class gift (eg nieces and nephews), no lapse unless ALL members of class predecease
If a gift is a class gift (all my nieces and nephews), will the gift or part of it lapse if multiple die?
No - will vest in remaining one(s)
Will lapse only if all predecease
Section 33 Wills Act 1837
If gift to one of their direct descendents (child/grandchild) who predeceases them and have issue of their own who are alive, automatically passes to their issue.
(e.g. daughter predeceased but had her own daughter, passes to the granddaughter)
If multiple, they take in equal shares (e.g. daughter has 3 kids)
Not apply if contrary intention shown.
Can a beneficiary disclaim a gift? If so, what would happen?
When will they not be able to disclaim?
Yes
Treated as predeceased (lapse)
- falls to residue, intestacy or direct issue
However if received a benefit from a gift, taken to have accepted and so can no longer disclaim
(e.g. payment of income)
If you unlawfully killed someone, are you ever entitled to gift?
No - unless:
- insane; or
- in cases other than murder, court considers that justice demands it (e.g. assisted suicide Dignity’s)
If forfeit entitlement (i.e. unlawfully kill), who does your gift go to?
Unless contrary intention, treated as if predeceased.
(i.e. lapse - goes to residue, intestate or their direct issue)
What is the effect of a will being revoked?
Nullifies it (either in part or whole)
How can a will be revoked?
- By a later will or codicil
- Destruction
- Marriage or civil partnership
Why is it advisable to date a will/codicil?
Most recent will have effect over others
Will a court ever find that a testator did not actually intend to revoke a will, despite expressly stating this?
Yes, if revocation is seen as conditional on an event which has not happened
CONDITIONAL REVOCATION.
How can you revoke a will through destroyal?
Can someone else revoke for u?
Physically destruct
- tearing/burning etc
- SYMBOLIC not enough
NOT “this will is revoked”
NOT striking line through
- BUT if vital part destroyed - e.g. signature - then may work and destroy whole will
If destroy one part, may revoke only that part if rest of will is intelligble / can operate without.
AND
Intend revocation
- fully redact “£50 to John” - no gift to John (I guess obvs intended
Yes - if presence and direction
If accidentally destroyed, what will court do?
Look at available evidence to establish contents (usually a copy of original will but sometimes oral evidence of those involved)
Doctrine of dependent relative revocation
Court save a will if testator’s intention to revoke by destruction was conditional on some future event (eg execution of a new will) which did not happen
Required capacity to revoke a will
Same as will (i.e. mmu/delusion)
What happens if marry/CP after drafting a will? (General rule)
Automatically revoked
Expectation to general rule on impact of marriage on a will?
Express that intend to marry specific person
AND express intend for will not be revoked
e.g. intend to marry nadia and do not want this to revoke this will.
If civil partnership converted to a marriage, is the will revoked?
No
If divorce/dissolution, any _______ provisions would apply
Substitutional
(e.g. if I die, want it go to x person)
(if none, will continues as it was)
Can a testator ever be held to an agreement not to revoke their will or a specific part of it?
term for thing similar to this?
Yes - if doing so would be breach of contact
Mutual wills
What are mutual wills?
Two people make wills in similar terms AND make clear AGREEMENT on how survivor disposes of deceased testator’s estate
(e.g. husband and wife - whoever survives leaves their estate to wife’s daughter from previous relationship)
What if surviving party revokes mutual will and term for this?
Doctrine of mutual wills.
If deceased party fulfilled their side of bargain, equity imposes constructive trust over all of survivor’s estate.
In favour of beneficiary under original mutual will.
(e.g. husband and wife mutual will, wife dies and her estate goes to X then husband revokes, trust imposed in favour of X)
If both testators still alive, can a mutual will be revoked?
Yes if mutual decision
No if unilateral decision by one party - breach of agreement and can seek contractual damages, and allows other testator to revoke if want to
Will beneficiary always receive their intended benefit under an unrevoked mutual will?
No - the survivor free to spend their money how they wish so may be nothing left.
Although not permitted to do so with the intention of defeating the agreement.
Intention required for codicil?
Same as will.
Intended to - simply referring to existing will fine.
When is a will with a codicil attached deemed to take effect?
Date of codicil
How could you use additional documents to validate a gift which is otherwise invalid due to beneficiary acting as witness?
A codicil witnessed by someone who is not the beneficiary
How can you show you change mind on revocation of will?
Codicil, if can show it intended to revive.
Either:
- express state that intend to revive; or
- make a gift which means could have had no other intention but to revive
Own idea:
“i intend for this codicil to revive my former will ___ “
Best practice on when to advise drafting new will instead of codicil?
Substantive changes
If a testator makes alterations to original will (not in a codicil), will they be valid?
If:
- made before will was executed (may need evi); or
- executed like a will (testator’s and witnesses initials in margin suffice); or
- Obliterates original wording + intention to revoke = revokes
(note: won’t be revoked if conditional revocation rule applies)
If attempt to make alterations to will but invalid, what will the courts do?
Wording must be ____
e.g. replaced wording but not signed
Use wording of original will
provided it is apparent
i.e.
read by ordinary means
e.g. holding to light or magnifying glass - fine. asking solicitor who drew it up/X-Ray - no
Conditional revocation rule
If court finds testator only intended to revoke original words if their substitute words would take effect, revocation will not be valid.
Court will need to try to ascertain what original words would have been.
(bcos substitute words not executed so otherwise invalid)
What should be included at start of will?
Full name and address.
If a testator is planning to marry in the future, what should they do?
State their expectation of marriage and that they do not wish it to revoke the will.
If creating an express trust of the estate, what must a testator do?
Appoint trustees, ideally same as executors.
What are the additional duties of a trustee who is also an executor?
Once done executor duties, will transfer property to be held on trust to self
^ can’t be a trustee if don’t have the property!
How many executors can be named in a will? Explain what is best and when.
No maximum. Minimum of 1.
Little point having more than 4 - as only 4 can apply for a grant of probate.
1 is fine for simple, small estate but risk of predeceasing / unable act.
so ideally 2 or name substitute.
can executor be a beneficiary
yes
e.g. jan
Who can be an executor?
Can they be under 18?
non-professionals (fam friends)
professionals
banks and other trust corporations
They can be under 18 - but won’t be entitled to apply until 18.
Advantages and disadvantages of appointing non-professional executors
:) Testator trusts them
:) Unlikely to want to charge the estate for dealing with it
:( complex estate
:( lack expertise
:( cost of solicitor will be paid for by the estate anyway
benefits / disadvantages of professionals as executor
Expertise
Family and friends spared burden during grief
But paid
How to appoint professional trustees as testator?
Can appoint individual solicitor - but may die or retire
So can appoint firm itself
- if general partnership, appoint the partners (since no SLP anyway)
Specify partners at date of death (otherwise will be those at date of execution and may have died/retired)
Indicate that if amalgamates/changes name/becomes an LLP, appointing partners in new firm
Usual trust corporation (which acts as executor)?
Banks
Advantages and disadvantages of executor being banks or other trust corps
Expertise
Won’t die or retire
Large / impersonal
Usually charge percentage of the estate
Can trustees or executors charge for services?
What can they always recover?
No - fiduciary / unable profit unless authorised.
Can recover expenses.
But can recover reasonable remuneration if:
- trust corporation; or
- professional trustee
^ under that, prof trustee:
- need CONSENT any co-trustees.
- SOLE prof trustee unable recover
BUT if got charging clause, doesn’t matter if professional or co-trustees don’t consent.
What should a testator with infant children be sure to contain in will?
Clause stating who their appointed guardians would be if both died
How could you prevent ademption of something which may be sold or replaced?
e.g. want her to have my house. currently the vicarage.
Use more general wording
e.g. not The Vicarage but “my house at time of death”
What should testator do if inviting beneficiaries to pick their items from the estate?
Order for choosing
Means for resolving any dispute
^ Usually say decision of executors final
Impose time limit
Considerations when gifting minors
Whether wish to make a contingent or vested (no conditions/outright) gift.
OUTRIGHT (ie vested)
- held on trust
- unless will says otherwise, aprents can give good receipt and hold as trustees until bday
- could allow child good receipt if over 16
Contingent
- need to appoint a trustee
If intestacy, need 2 administrators.
If die before reaching conditions under contingent trust, what happens to the gift?
Does not go to the beneficiary’s estate and instead goes to testator’s residue estate.
What should solicitor state if gift to a charity in will?
Address / charity number
Receipt from treasurer or other proper officer accepted
(otherwise need signed all members)
Gift is to body for ‘its general charitable purpose’
(if body dissolves, shows intention and give to similar charity)
Where is burden of inheritance tax felt like where paid from?
Out of residuary estate
Unless contrary intention
Who should pay costs of packing or transporting a gift?
Beneficiary
So testator should specify that costs should be paid from residue if think would be too great for beneficiary
Who do mortgage debts fall on?
what phrasing should u use
Beneficiary who receives the property unless will shows a contrary direction
If don’t want beneficiary to pay, should include provision that “free of mortgage” - means residue will pay.
How should payment of debts, expenses and legacies be dealt with in will?
(e.g. testator’s expenses, funeral expenses, debts etc - paid out of residue)
Should be express direction that paid from residue before distributed to beneficiaries.
(e.g. “I give all my property after deducting debts and legacies to my sister” “subject to payment of my debts and legacies, I give all my estate”)
If don’t, statutory order applies (causes issues)
Is a trust required for a gift of residue to adult or charitable beneficiaries?
Not required but does no harm.
Common types of trusts in family wills
- Contingent (on reaching certain age)
- Discretionary (trustee chooses which beneficiaries from a class, and how much)
- Trusts with successive interests (e.g. pay to my wife, and then to my children)
How to avoid a failed gift of residue going under intestacy rules?
Substitutional gift
(e.g. express substitution to daughter if niece predeceases)
Longstop beneficiary to inherit any failed gifts (often a charity because little chance of failing)
What should you avoid in a gift of residue?
Using names and specific shares.
Refer only to children may have at date of death.
“e.g. children that survive me in equal shares” - so if one dies, then the rest share it between them.
Could state that if the deceased child has children, their shares go to them.
(if named them and one predeceased, would be partial intestacy or s33 apply if was issue** with issue** - doesn’t apply if no issue and would be partial intestacy)
If a beneficiary dies shortly after testator, what happens to their gift?
Goes under their will or intestacy provisions (not the testator’s)
(unless the will states otherwise or if under intestacy provisions, spouse 28 days)
When is an affidavit or WS with statement of truth required?
Where presumption due execution doesn’t apply
i.e. no attestation clause
If predeceased by a beneficiary where the gift is shared between two parties, what will happen?
If split into two shares or shared jointly (wording e.g. “such of them” and “jointly”), the gift won’t lapse and will go to the other person.
Wording is imp!
If it said something like
If an obliteration isn’t validly executed but completely redacts, what happens?
The clause is revoked anyway
Redaction by obliteration
When is IHT charged?
- Death
- Lifetime gifts to individuals 7 years prior to death
- Lifetime gifts to companies or trusts
When will IHT be chargeable on PETs?
(lifetime gifts between individuals)
Die within 7 years making gift
When is IHT chargeable on lifetime transfers?
(NB lifetime transfers = lifetime gifts to a) individuals; or b) company or trust)
If to individuals, if die within 7 years (PET)
If to trust or company, immediately (LCT)
- UNLESS trust is for disabled person
👨🦼
What are lifetime chargeable transfers?
Anything not a PET
Usually lifetime gifts into a trust or company (other than disabled trust)
What are the four steps for calculating IHT liability?
- Identify if is a transfer
- Find the value transferred
- Apply exemptions and reliefs
- Calculate tax at appropriate rate
(T, V E, T)
What is the rate of tax for PETs (gift within 7 yrs)?
40%
But reduced if the deceased survived for more than 3 years after transfer
What must happen if deceased passed within 7 years of making an LCT? (trust/company)
Recalculate tax rate so it is based on the death rate
(i.e. 40% minus any taper)
What is modification of basic valuation principle?
If death caused value of asset to increase or decrease, that is taken into account
eg life insurance - use maturity value
What is included in transfer of value?
(in brief - for death and lifetime)
On death - all property was beneficially entitled to
Lifetime transfers - any transaction reduced estate
- inc gift or sale at undervalue
How is a transfer’s value determined for IHT purposes?
On death
vs lifetime transfer
Death =
- open market immediately before death
(reductions for joint property)
Lifetime =
- amount estate reduced by due to transfer
(pairs/related property etc)
how to value quoted shares
one-quarter of diff between highest and lowest price, and add to lower price
e.g.102/106p - value each share 103p
do u deduct debts and expenses for IHT?
funeral costs?
what about unpaid tax?
yes
only reasonable funeral costs
income tax unpaid is deductible
What transfers are always exempt IHT?
Spouse and charitable
This includes if:
- trust life interest goes to charity after death
- joint owner with spouse
Exemptions to paying IHT on lifetime transfers?
- Annual exemption 3k
- Small gifts £250
- Marriage gifts £5k/£2.5k/£1k
- Gifts made as normal expenditure out of income
Explain the annual exemption
For PETs/LCTs
£3k
Can carry unused from previous year
So max £6k
Must use this years first
What is business property relief and what does it apply to?
Reduces value transferred by a transfer of certain types of property by 100% or 50%
(applies to lifetime and death)
Tax rate if estate includes residential house closely inherited?
0% on first £175,000
(nb you still get another 0% on next £325k)
Requirements for residential house closely inherited?
Interest in home which lived in at some point (dwelling)
Their own OR their spouses lineal descendents:
- child/grandchild, step-children, adopted, fostered, children deceased guardian of
- widow(er) / surviving civil partner of a lineal descent who predeceased the deceased, unless remarried before deceased’s death
(eg kid predeceased, their unmarried widow)
*i.e. own or spouses lineal, or lineal’s spouse *
IHT rate for all transfers other than residential?
(0% on first ___ )
0% on first £325,000
40% after that
What property subject to IHT?
(this is all correct. don’t re-check)
- taxed on their equal ‘share’ in survivorship property
- qualifying interest in possession (certain trust property)
sep card ^
- property subject to a reservation
(ie where pretended to gift but continued enjoying)
When will trust property be chargeable to IHT on death?
What is term for this?
‘Qualifying interest in possession’
Whole trust fund taxed as if part of estate if:
- was entitled to either claim income or enjoy equivalent way (eg living in it);
(ie an interest in possession) - trustees no discretion re whether would receive; AND
- The interest is qualifying
- usually because is an immediate post-death interest (IPDI) - ie interest arising out of a will
e.g.
- Gina left all her estate in will to executors on trust to pay income to her Rob for life, and remainder to Rose
- Trustees must invest to produce income
- Rob has interest to income during life, so has interest in possession
How is qualifying interest in possession (trust property) taxed for IHT?
On death as if part of estate
Even if passes to someone else on their death
What is property for reservation (IHT purposes)?
If give property ownership but not possession and enjoyment (or was not entirely excluded from enjoying), treated as if beneficially entitled
(e.g. give jewellery but keep it)
What is excluded property (and therefore not taxed) for IHT purposes?
- Beneficial interest passes immediately before death (doesn’t go to estate)
E.g.
- life assurance policy for benefit of another
- discretionary pension lump sum to fam
- Future interest
(e.g. remainder under a trust)
(‘reversionary interest’)
Requirements to qualify for any form of business property relief?
-
Trading companies only
(ie not a company dealing in investments or land) - Owned at least two years before transfer
can be a replacement for relevant business property so combined ownership 2 years
relevant business property:
- ie those stuff above e.g. partnership share
If inherit from deceased spouse, deemed to have owned from date spouse acquired. Doesn’t apply to lifetime transfers though.
When will there be 100% business property relief?
‘relevant business property’, i.e.
1. business or interest in a business (inc partnership share)
2. shares in unquoted company (not on stock exchange) - no matter how many
also 2 yrs
(conditions on when will be 2 yrs sep card)
When will there be BPR of 50%
- Voting control (over 50% shares) in quoted company
(inc if combined total with spouses/civil partners); or - (Baso partnership property if u had voting control)
Land, building, machinery or plant owned personally but used in partnership which member of or any company (quoted or unquoted) had voting control in
(again in assessing voting control, can combine shareholding of spouses)
Explain agricultural propety relief in full
- impact
- conditions
checked is all right
- reduces agri value of property by 100% or 50%
- agri value assumes can only ever use for agri
^ anything over agri value doesn’t get a reduction (but may get BRP)
e.g. part of value is housing development potential - Must have:
1. Occupied themselves for 2 years prior; or
2. Owned for 7 years prior and someone else occupied throughout for agri
100% if:
- had right to vacant possession immediately before transfer; or
- subject to letting commencing on or after 1 Sept 1995
50% in all other cases
When would you get 100% and 50% agricultural property relief?
- Had right to vacant possession immediately before; or
- Subject to letting commencing on or after Sept 1995
50% all other cases
When will a spouse get an uplifted NRB or RNRB (0% rate) and how does it apply?
NRB: person claiming it died on/after Oct 2007
RNRB: whenever died
(irrelevant when spouse died)
Can use whatever % they did not use of their NRB entitlement
E.g. if did not use any, you would get 100% uplift
(instead of 325k, get 650k at 0%)
(RNRB - get 325k instead of 175k)
(can get both together)
Lifetime transfers - effect of cumulation principle for IHT?
They are included first in the £325k exemption
(unless immediately chargeable/exempt)
Calculation where resi estate is over £2m?
(RNRB)
value of estate - 2m = __ / 2 =»_space;>
175k -»_space;> = ___
Reduces by £1 for every £2 over
e.g.
estate is £2,100,000. pretend RNRB is £125,000.
£100,000 over £2m so lose £50,000 RNRB.
£125,000 - 50,000 = £75,000
(might be so much over £2m that lost completely)
explain in full downsizing allowance IHT
Claim RNRB would have been entitled to on old property if retained it
Provided:
- OLD property would have qualified for RNRB if retained
(ie gave to lineal descendents etc); and - left replacement property OR if sold (eg care home) assets of equivalent value
left to lineal descendents
(prevents older people clinging)
What could be a PET (potentially exempt transfer)?
Gift to individual or disabled trust
What lifetime gifts are excluded form definition of PET?
(not beacuse they are an LCT)
not a PET cos they MET !
Maintenance, education or training of child who is under 18 or older if still in edu/training.
Or maintenance dependent relative
How to value a PET?
e.g. pair worth 80k
Loss of value to estate due to transfer
Usually market value
Sometimes not tho - pairs:
e.g.
- pair of shoes worth £80k
- one is worth £25k
- loss to estate is £55k
NB not apply if married
Requirements for agri relief and BPR on PETs?
Transferee still owns at date of transferor’s death
Order of application of reliefs/exemptions for lifetime only?
- Any spouse or civil exemption
- Reliefs (e.g. BRP)
(no point wasting reliefs if exempt anyway) - Lifetime only exemptions
What counts as small gift for IHT?
Max £250 per tax year to one person
As many gifts as want to diff people
Can’t set off against a gift over £250
When will lifetime transfer be exempt due to normal expenditure?
- part of normal expenditure; and
- out of transferor’s income; and
- afterwards, still had enough to maintain usual standard of living
(e.g. regular payment to child at uni with living expenses)
Explain IHT exemption for lifetime gifts on marriage
Up to:
- From parent: up to 5k
- Any other ancestor (ancestor = grandparents/great grandparents): 2.5k
- Any other person (not just relative): 1k
What tax rate chargeable on LCT (lifetime chargeable transfers) during lifetime?
(on first x___)
0% first 325k
(cumulated from past 7 years)
20% remainder
How to cumulate for PETs and LCTs once died?
remember PETs only chargeable on death but LCTs are chargeable throughout which is why 14 years still have effect
Cumulate all PETs AND LCTs made in 7 yrs BEFORE relevant PET (not before death), and consider whether nil rate band was used up by any of them
e.g.
- Gift of 200k in June 2021, died in August 2023
- in 7 years prior, spent £194k of the £325k NRB up
- So can onky use £131k of it against the 200k gift
(so would have to survive 14 years for them to have no effect)
Tapering relief for PETs and LCTs after death?
(i.e. once done all calcs, only pay ____ % of that if survived over 3 yrs after making)
Survive
3-4 years (after transfer): 80%
4 -5: 60%
5 - 6: 40%
6 - 7: 20%
% tax payable charities
36%
if 10% of net estate (after otehr exemptions/reliefs/NRB) goes to charity
What happens if an LCT was charged IHT at time it was made, and later becomes chargeable again (bcos death)?
HMRC may refund for tax paid (eg tapering relief means overpaid)
Or trustees might need to pay further amount cos it inc to 40%
Who is liable to HMRC for payment of IHT?
(to pay)
Beneficiary and the representative (i.e. trustee/PRs) concurrently liable
But usually paid before beneficiary sees it
How to calculate estate rate?
(avergage RATE OF TAX on each item of property in the estate)
Total tax bill = small number
(after done 40% etc)
Total chargeable estate = big number
(before exemptions etc)
small number / big number = ___
__ x 100 = __ %
[value of relevant property] x __%
e.g.
325k at 0% and 75k at 40% - total tax due is £30,000
£30,000 / 400,000 x 100 = 7.5%
(use where need to know if paying instalments of property or gift is subject to tax from recipient)
Multiply by value of the asset / class of assets
(instalment property on own or non-instalment class together)
What types of property are PRs liable to pay IHT on?
Any concurrent liability?
- estate passing under will/intestacy
- beneficially entitled to immed before death
- e.g. survivorship
- BUT only up to value of assets which estate received / would have if not for negligence
(basically always equal shares) - liable after 12 m if unpaid on property which deceased gave away but carried on enjoying (naughty)
beneficiary who received / other survivor if survivorship also liable in theory
^ v rare HMRC claim from them tho
NOT trust property (even if qualifying interest in possession) trustees are liable.
^ and remainder beneficiaries jointly
What types of property are TRUSTEES (not PRs) liable to pay IHT on?
Any property comprised in a settlement i.e. a trust - immediately before death
(e.g. qualifying interest in possession under trust)
future beneficiary also liable
Who is liable for IHT of a gift which ends up still being in estate cos continued enjoy/possess?
(when they transfer to someone else but continue to use/posess it)
Transferee (person transferred it to)
If they don’t pay 12 months, then PR
Who pays IHT on LCTs after death?
Transferor (ie the estate) primarily liable
But trustees usually pay out of property given
Bcos costs more if transferor pays
- they have to pay the loss to estate PLUS IHT payable on the transfer, and loss to estate inc by IHT had to pay.
^this is where I got confused ! if in a trust, trustees liable. if goes to trust cos its a LCT, PRs liable but trustees usually pay!
Explain grossing up / value lost to estate where LCT and impact on IHT
On death, the value of the transfer would be:
- the amount transferred; and
- IHT paid on it
^ bcos that is amount losss estate suffered
THIS IS WHY TRUSTEES PAY ON LCTs
Who is liable for IHT on PETs?
Is it limited?
What does this mean for when should distribute estate?
Transferee technically
If not paid in 12 months, PR
Liability of PRs limited to extent of assets which they actually received on death (or would have if not for default)
(PRs still liable if distributed estate)
Delay distribution until IHT paid
(so u know u will have enough 🤑 and maybe carrot to stick)
Who has the BURDEN of tax for IHT (PETs and LCTs)?
Transferor can decide
(eg could say it falls on recipient of gifts)
If will is silent, default is:
- if property vests in PRs, payable as testamentary expense
(often residue)
- if survivorship property, borne by surviving joint tenant
NB:
liability = who is RESPONSIBLE for making sure it is paid
burden = you aren’t responsible for paying - but you have the thing which is burdened from the IHT
if additional IHT liability on LCT after death, who is liable?
transferee
but if not paid 12 months, PRs
even if distributed estate already
When is IHT due for payment?
Will interest be due?
Non-instalment option:
all due 6 months from END of month of death
- interest if late
and BEFORE GRANT
e.g. died on 1 March, payable 31 September
Instalment option:
- first instalment 6 months from end of month of death
- other instalments due at annual intervals
- interest if late
- or if land, interest due on all except first instalment
What is the instalment option for payment of IHT?
How many instalments?
Pay IHT for that specific property over 10 equal annual instalments using estate rate
First instalment due 6 months after end of month of death
What property can you get instalment option for?
- Any land🏡
(e.g. home) - Any business or interest in a business 👨💼
- Any shares (quoted/unquoted) which immediately before death gave control of company to deceased 📈
(i.e. over 50%) -
Unquoted shares which don’t give D control if:
- worth over 20k and at least 10% share value; or
- HMRC satisfied requiring payment in one sum = hardship; or
- IHT amounts at least 20% IHT on whole estate
If instalment option granted, what interest is payable?
Other than land - none if pay on due date
Land - each instalment other than first instalment, on amount outsanding for previous year
If property is sold during instlament period, all outstanding tax and interest payable
What is DOTAS and when does it apply?
Require IHT schemes disclosed HMRC if main purpose is one of listed tax advantaged and involves abnormal steps
(POTUS) (DOTAS) (abnormal schemes tax adv)
What is GARR and when does it apply?
Allows HMRC impose penalty for abusive tax arrangements
Where arrangement cannot reasonably regard as a reasonable course of action (double reasonableness) - to get tax advantage
RR - reasonably regard reasonable - GARR - 2 Rs
Can you carry forward annual exemption (the 3k for PETs)?
Yes but only for one year and current years must be used before previous years
What exemptions and reliefs are available for IHT?
Exemptions:
3k annual exemption
Small gifts
Spouse
Charity
Reliefs:
Business property relief
Agricultural
(exemptions first - no point reliefs if exemptions apply)
If TiC, what happens with the house on death at each step?
Step 2: they get half the value
Step 3: full spousal exemption
If joint tenants with someone other than spouse, how is it valued for IHT?
Include relief?
50% of it
Discount usually:
- 10% comm prop
- 15% resi
(may be more if property v small)
Related property rules
If married and each own one set of a pair, then instead of being a potentially lower value (i.e. what they are actually worth), they are just half of the market value
But the other must actually own the other one
if related property rules apply, prevents using discounted rates for suvivorship property
What is a grant of representation?
Official doc confirming PRs authority to act
(and distribute estate)
Umbrella term for grant of probate and letters of admin
Why is grant of representation needed?
Banks / insurance companies etc need proof they have been properly appointed before can release funds
Also need to show have title if selling many assets
Who do you apply to for Grant of Representation?
His Majesty’s Courts and Tribunal Service Probate
(HMCTS)
(checked textbook and probate at end is correct)
Who are personal representatives (PRs)?
Deceased’s executor (will) or intended administrator
if appointed as executor in valid will and able / willing to act, what kind of grant would you obtain?
grant of probate
if valid will but no executors willing/able to act, what type of grant is required?
Administrators obtain grant of letters of administration with will annexed
If deceased left no will, what type of grant is required?
Administrators
Grant of simple letters of administration
How many administrators / executors are required?
PRs (ie administrators AND executors):
- only need 1, even if selling land, because can give good receipt for sale proceeds
(unlike trustees where need 2)
Administrators
- 2 required if one of beneficiaries:
- a) minor ; or
- b) has life interest only
(whereas one executor could act alone here)
What does grant of probate confirm?
Authority of executor to administer estate from will
Has evidence of title to assets
That the will and its contents are valid
Can an executor act without a grant of probate?
What about administrator?
Yes - can act from time of death
(get authority from the will - the grant just confirms that)
But can only undertake certain transactions, inc sale of land and retrieving bank money, with grant
(because they want confirmaation of title)
UNLIKE administrator who usually can’t act w/o grant.
- since their authority comes from the grant.
Can an administrator act without a grant?
Most of the time no
What questions do you need to ask where there is a will to determine if will be administrator or executor?
- is the will their last will
- was it validly revoked
- was it executed in accordance with s9
- contains attestation clause (raises presumption due execution)
Once solicitor identified the beneficiaries to a deceased’s estate, what must they do re GDPR?
Inform they are holding personal data on them, purposes using for and their rights as data subjects
For what assets is a grant not required?
- 5k or less and at discretion of institutions holding 🏦
(see next queue card/admin small estates act) - Chattels 🧽
(selling) - Physical cash usually 🤑
(if in deceased’s possession eg home)
And stuff that passes independently:
- Joint property 🏡🏡
- Life policies assigned or written in trust during deceased’s lifetime (i.e. someone else get proceeds of life insurance) 👨👧
- Pension benefits (where payable to beneficiaries) 👵
Explain when PRs will be able to obtain without grant under ‘Admin of Estates (Small Payments) Act’?
clue: helen
Permit payments to be made
Appear beneficially entitled
Worth 5k or less
At discretion of the institutions holding them
Includes money in:
- National Savings Bank and Trustee Savings Bank
- building societies and friendly societies
- national savings certificates and premium bonds
but not other bank accounts
(think of it as being a gov’t initiative to introduce this, and a lot of these are gov initiatives) (plus Helen)
Position on chattels and cash where no grant
Usually no need for grant to obtain for either
(e.g. physical cash - in home but not bank account)
Chattels - no need to sell w/o proving entitled
Why does joint property, life polices written for others and some pension benefits not require a grant of probate?
Pass independently of will / intestacy so never vest in PRs anyway
How can:
- survivor in joint tenancy
- beneficiary to life policy
- beneficiary to pension
get the property after death?
Produce death certificate to relevant institution
(survivorship - bank or LR, life policy = insurance company, pension = pension fund trustees)
Can acquire immediately
Which Rules govern priority for administrator where
a) valid will but no executor willing to act
b) no valid will
a) Rule 20
b) Rule 22
(2 Ts for intestacy)
Non-Contentious Probate Rules
What must PRs do re IHT before they can apply for a grant?
(clue: not just pay it)
Send IHT account IHT400 and any supporting schedules
(e.g. if lifetime gifts) to HMRC
(unless excepted)
and
pay any IHT that needs paying BEFORE can get grant
After paid any IHT due before grant, what must happen before grant issued?
What’s the form number?
HMRC sends receipt (IHT421) to HMCTS and informs PRs or solicitor that done this
Grant only issued when HMCTS receives receipt
How long should you allow between submission of IHT400 to HMRC and application for grant (i.e. once HMCTS receiving HMRC’s receipt)?
Implication if delay?
20 WORKING days
Application blocked if insufficient time elapsed
(e.g. 20 days after submitting IHT 400 we will apply for grant online)
Method of application for grant of probate?
How idffer if legal professional?
How to apply?
What needs including?
Professional:
- Online app
(except if application is to prove copy of will)
- open HMCTS Payment by Account
(pays fee automatically out of once apply)
Otherwise:
- postal PA1P
- pay probate fee
For both enclose will, codicil and any additional evi
Method of application for grants of letters of administration?
Post
- PA1P if will annexed
- PA1A if not
Attach will, codicil and any additional evi
(sometimes online if certain conditions)
What fee is payable for application for grant (nb same for online and paper)?
When is there no fee?
£273 if estate exceeds 5k
No fee if 5k or less
One free copy of grant and extra must request/pay for
What additional evidence may be required to send for grant of probate if are or may be Qs re validity of will?
- witness statement with statement of truth
(e.g. from original witness or person who explained will to testator) - affidavit
(e.g. from doctor, solicitor who drafted if not acting for PRs)
When will evidence of plight and condition be needed?
What form will it take?
Appears will interfered with since execution, typically:
- altered since execution
- obvs mark on will indicating doc may have been attached
(e.g. paper clip mark) - appears attempted revocation
(e.g. torn)
Usually affidavit or witness statement
What issues may require further evidence to be attached to application for probate?
- No attestation clause/doubts re execution
(usually witness) - Mental capacity
(ideally affidavit doctor) - Understood contents
(e.g. signed by another or suspicious circumstances/drafted by major ben)
(if no attestation, affidavit/ WS) - Remote witnessing
(if no attestation, affidavit/WS) - State of will (e.g. marks)
(affidavit/WS plight condition usually) - Lost will
(presume intended revoke if can’t find
BUT if lost or accidental destroy can use a copy eg solicitor’s file or reconstruct via app w affidavit/WS)
See OneNote for further if want - but most on here)
If a will has been lost or accidentally revoked, what should you do?
What kind of grant?
When applying for probate:
- include a copy eg from solicitor’s file
- reconstruction
Need to include an affidavit or witness statement for grant of PROBATE
(checked it is defo probate)
What is IHT400 used for?
When may supporting schedules be required?
Accounts for non-excepted estate (to calculate IHT payable)
Supporting schedules may be required eg if LCTs/PETs
When is IHT400 (the big calculationy form) due by?
12 months after end of month of death
Usually do 6 months after end of month as that is when IHT due and interest otherwise accrues
If IHT is payable, what must be done before IHT400? (IHT due calculationy form)
Apply for a reference number
What is grant of representation ?
Overarching term for all grants
(so includes grant of probates, letters of admin with will annexed and of simple letters of admin)
How long does HMRC have to request further information after grant of administration?
What if they miss this deadline?
60 days from issuing
(normal not working)
Automatic clearance of estate
(so if looks excepted and HMRC don’t correct in 60 days, fine)
What happens if estate which appeared excepted subsequently found not to be?
How long to do this?
PRs submit IHT400 (which wouldn’t have had to submit previously) within 6 months of discovery
What are the three categories of excepted estate?
Small estates
Exempt estates
Non-domiciled estates
What types of estate fall into small category of excepted estates?
Include max £___
And what the types of relevant transfer are?
(so give all the deets)
Gross value of estate is under NRB
(i.e. before debts/reliefs)
inc any spousal NRB
No LCT or PETs other than specified and specified exempt transfers
Total of specified or specified exempt = no more than 250k
Settled property (ie trust property) not over £250k
No more than 100k outside UK
Specified transfers = quoted shares 💳, land, 🏞️ cash, 🤑 chattels🧽 7 years before death
if no specified transfer made, estate cannot be exempt - e.g. unquoted shares
Specified exempt transfers = gifts to spouses, charity, political parties, housing associations, employee trusts and maintenance funds 7 years before death
gross vs net estate value meaning
gross - total value before liabilities (debts/funeral expenses etc)
net - minus liabilities BUT BEFORE IHT exemptions
net chargeable estate - minus liabilities AND exemptions
What are specified transfers?
IHT chargeable transfers of:
- cash
- chattels
- QUOTED shares or securities
- interest in or over land
(unless land subject to reservation of benefit or becomes settled - ie trust property in which have life interest)
made in 7 years before death
valued without reliefs
(so not unquoted shares)
What are specified exempt transfers?
7 years before death and exempt from IHT if:
- transfers between spouses
- gifts to charities
- gifts to political parties
- gifts to housing associations
- maintenance funds for historic buildings
- employee trusts
When valuing specified transfers, what should you make sure to ignore?
Reliefs e.g. business and agricultural
What are category 2 exempt excepted estates?
where bulk of estate attracts spouse or charity exemption
- gross value, including specified and specified exempt transfers, does NOT exceed £3m; and
- net chargeable estate (after liabilities AND spouse / charity exemption) under nil rate band; and
Same as cat 1 in that:
- no LCTs/PETs except specified
- max 250k specified (disregard reliefs)
- max 100k outside UK
- can use spousal NRB
Unlike cat 1:
- max 250k individual chargeable trust property - but max 1m all chargeable trust property.
fyi cat 1 says max 250k settled property ie trust property interest in
To be category 1 or 2, aggregate value of specified transfers cannot exceed _______
£250k
Effect of being exempted estate
PRs aren’t required to provide info directly to HMRC
Don’t have to file IHT400
(do still need to apply for grant)
What is a category 3 excepted estate?
Non-domiciled estates
Where deceased never domiciled in UK AND
only owned limited assets in UK
What do you need to include on application for grant if PR if excepted estate?
(other than non uk domiciled)
- deceased’s full name and date of death
- declare
- estate is excepted;
- whether claiming any of deceased’s pre-deceased partner’s unused nil rate band - gross value of estate plus any specified / specified exempt transfers 7 yrs
- net value of estate (i.e. minus debts)
- net qualifying value
(i.e. minus debts AND exemptions)
What is net value vs net qualifying value
Net value = minus debts
Net qualifying = minus debts and any exemptions
(think of it as u qualify for soc approval after charitable and spouse)
for purposes of applying exempt estate !
Who do PRs for excepted estates send application to grant to?
What does that receiving party do and when?
(other than non uk domiciled)
HMCTS
Who pass onto HMRC within one month
checked and this is correct
Non domiciled estates:
why diff in applying for grant than other excepted estate?
what will happen?
Send more info than other excepted estates
HMRC select random sample to review within 60 days of application
HMRC will use other info sources to check if feels risk IHT payable
(don’t need know naymore than this)
Who should you send IHT400 to and with what?
HMRC
Supporting schedules
What type of IHT must be paid before grant?
All except instalment option property
(nb instalment option property must be elected for by PRs - if don’t IHT for this must be paid before grant and within 6 months of death)
If PR elected to pay IHT in instalments (on instalment option property), when is first instalment due?
First instalment due within 6 months of end of month of death
Other nine instalments at annual intervals
What is estate rate used for?
If IHT due in instalments
Work out how much tax associated to specific property
If tell beneficiary they have to pay tax on something gifted e.g. a house
What property always carries interest, regardless whether pay IHT on time?
Land
Apart from first instalment
Interest on amount outstanding
( if received under will and had an instalment option but then sell it, you have to pay all the remaining instalments )
Options for funding IHT before grant?
- Direct payment scheme
(see next card) - Life assurance
- if proceeds of deceased’s life insurance policy are payable to estate - ask life assurance company (nb not life insurance) to pay to HMRC instead of PRs - Assets realisable without production of grant
(up to 5k at discretion, chattels, physical cash) - Loans from beneficiaries
(eg wealthy or already received joint property/life policy) - Borrow from bank
- usually those who don’t participate in voluntary scheme. often undertaking from solicitor. interest and arrangement fee charged so spenny. - National Savings and Gov’t stock
- can pay from National Savings Bank Account proceeds, Nat Sav Certs, Nat Savings register or nat savings investment. - Heritage property in lieu of tax
- can offer HMRC an asset in lieu of tax if S of S accepts - national, scientific, historic, artistic interest) - Obtain grant on credit
- exceptional. if demonstrate imposs to pay IHT in advance, HMRC allow obtain on credit.
(also on OneNote but summarised all above)
How does direct payment scheme work (for PRs who are trying to fund IHT before grant)?
What doc?
Disadv?
PRs can arrange payment to HMCTS directly from deceased accounts
Only if banks / building societies part of scheme
- PRs send IHT423 to relevant bank/building society at same time send IHT400 to HMRC
- Bank/building society send money direct to HMRC
- HMRC email receipt to HMCTS and notify solicitor
SLOW
Solicitors often make private arrangements with banks/building societies (quicker)
PA1P and PA1A - explain what contain
(paper applications for grant)
but includes:
- applicant’s and deceased’s details
(inc all names if go by multiple)
- any land settled before their death?
(rare)
- attorney applications
(where applying on behalf of the person actually entitled to grant e.g. bcos lack capacity)
- IHT tax
- IHT400 or IHT421 used
- if excepted, gross/net/qualifying value
(net value = before exemptions)
(statement of truth)
What is PROBATE value?
What is gross probate value?
What is net probate value?
Estate passing under grant
(not joint tenancies etc)
Reliefs irrelevant
Gross probate value = before debts
Net probate value = after debts
But not reliefs / exemptions
(might get asked in PA1A/PA1P)
PA1P form - what basic stuff is asked?
- Will itself
- send with any codicils and date
- asks if married after making - entitlement to grant
- confirm date of will, codicils and that have not been revoked from acting due to marriage - number of executor
only one required if valid will
If executor lacks capacity to make decisions, can they apply for grant?
No
Other executors do it
If only executor, their attorney takes
If executor is a minor (under 18), can they obtain grant?
How does position vary depending on other executors?
What are the diff terms?
- OTHER executors:
- can grant to adults with power reserved
- then if estate not administered by time reaches 18, application for grant of double probate
(can act alongside other executors)
-
ONLY executor
- someone else applies their behalf
- grant letters admin w will annexed for use and benefit of minor will be made
May then apply for cessate grant of probate if admin not completed
How does executor lose right to renunciation?
Intermeddling
i.e. undertook PR style tasks already
e.g. sold deceased’s chattels
Deemed to have accepted appointment
What happens if executor renounces right?
What if they are a trustee?
Rights cease and admin of estate continues as if never appointed
NB: if also a trustee, will remain a trustee
How to renounce as executor?
Formalities?
Form PA15
Signed
Witnessed
Filed with HMCTS
Does a renouncing executor remain a trustee?
Yes
But can disclaim trusteeship separately if wish
How many executors can be appointed in a will/get grant by probate?
No limit appointing
But max 4 get grant of probate
If more than 4, power may be reserved if vacancy arises in future
Is there an option to renounce from acting as executor initially but not eliminate becoming one in future?
Yes
If multiple executors
The one who can act should apply for grant with power reserved for other
e.g. working abroad
what are limited grants?
can obtain grant probate limited to subject matter or time
e.g. literary expert to deal with books
up to 4 can take grant limited to deceased’s writings and up to 4 can take grant dealing w rest of estate
(confusing!)
in what situ should you apply for grant of admin with will annexed?
- no executors willing or able to act
(regardless whether will disposed whole estate)
e.g. because: - will does not appoint executors
- they have all predeceased or renounced
- divorced from executor
The order of priority for entitlement to a grant of administration with will annexed?
- Executor
- Residuary beneficiary holding residue on trust for another
(e.g. residue to A and B to hold on trust for C) - Residuary beneficiary not holding in trust
(e.g. left residue to Boris to hold on trust for Emma - Emma only takes if Boris doesn’t act) - Intestacy of residue: those entitled to residue under intestacy
(e.g. Damien appoints Errol as executor and to have residue, Errol predeceased, under intestacy rules estate goes to his mother - she will take it) - PRs of residuary beneficiaries who survived testator but died without taking the grant
(e.g. Liam appointed Becky as executrix and gave residuary estate to Louise. Becky predeceased Liam. Lousie died yesterday. Chris is Louise’s executor. He will take grant.) - Any other beneficiary under will or creditor of deceased
e.g. beneficiary of house or beneficiary left money or creditor - PRs of any other beneficiary/creditor
someone in lower-category can take over from higher-ranked category because no one sits in there - but need to explain why taking priority in application
What happens under priority rules if two beneficiaries apply to be administrator with will annexed and one has vested interest and one has contingent?
Court prefers if just vested
But can make joint application
e.g. residue contingent on reaching 25 and one is 21, one is 26 - can make joint app but if were to apply separately, court would prefer 26 y/o
Can minors act as administrators with will annexed? (i.e. in priority rules)
No
Other people in same category will apply
If no others, parents or guardian apply
Limited grant until reach 18
Can you have grant for more than four ADMINISTRATORS?
No
Can an ADMINISTRATOR who is entitled to grant apply to have it reserved? (so use it later date)
No
If there are multiple people entitled to same degree to be an ADMINISTRATOR, do you need to make known to them that you are applying for grant?
No - can apply without notice
Can administrators applying for grant of letters of admin with will annexed renounce?
Form?
Yes - same way as executor but form PA16
Difference re losing right to renounce as administrator vs executor?
Administrator cannot lose by intermeddling
Total intestacy - order of priority for grant as administrator?
Same as who benefits under intestacy rules
So beneficiaries on intestacy take grant
i.e.:
1. Spouse
2. Children / grandchildren
3. Father and mother
4. Bros/sis
5. Half bros/sis
6. Grandparents
7. Aunty uncle
8. Half aunty uncle (half bros/sis of parents)
9. Treasury solicitor if bona vacantia
10. creditor who may have beneficial interest
(never step bro sis etc or minor)
How do u establish entitlement in pa1A if act as administrator where applying as someone in lower category ?
- why no one in higher categories under rule 22 taking grant
- state reli to deceased
Must always state if left a spouse and which other r 22 relatives survived
To apply as administrator must have _______
Beneficial interest in the estate under intestacy
^ even if u are say the child and all estate goes to wife, could still apply.
Unless bona vacantia or creditor
Max no of administrators for full intestacy?
What if multiple are entitled - power reserved?
Do you nede to give notice?
4 and no option for power reserved if more than 4
If two or more entitled same degree - just apply and no need give notice
When are minimum two administrators required?
Contrast to executors?
(only ever one executor)
MINORITY OR LIFE INTEREST created by intestacy
(think can ignore thsi) - through property (nb not land)
but court can dispense need for 2 in certain circumstances
(intestacy rules create statutory trust for any minors who become beneficiaries - interest vests until 18/marry)
Can you renounce right to administer estate in total intestacy?
Will it prevent u from getting beneficial interest?
Yes - same way as administrator with will annexed
(PA16)
Renunciation does not affect beneficial entitlement
How can you prevent issue of a grant?
What effect does it have?
When good idea?
Lodge a caveat with HMCTS
PA8A
Prevents issue of grant
Once been entered, no grant can be issued unless caveat is removed or ceased to be effective
Dispute over validity of will
Do beneficiaries of administered estate have equitable interests?
What right do they have?
No, but do have right to compel due administration
What duty are PRs under?
STATUTORY duty to administer correctly
Who are PRs personally liable to and what for?
personally
beneficiaries and creditors
errors
Can PRs retire or be removed?
No
Can only be removed with a court order
Why would you want to issue a caveat with HMCTS?
Dispute over validity of will
Believe lacks capacity
Dodgy will - appoints executor as sole beneficiary and intestacy prevents
How to apply to enter or lodge a caveat?
PA8A or online
(Applying for CAVEAT sounds like CAVE8)
How long does caveat last for?
6 months
Can apply extend another 6m
6 letters in caveat
What may happen if grant is applied for whilst caveat in place?
Warning issued to caveator, requiring them to enter appearance in 14 days setting out interest
If fail to, applicant for grant can remove caveat
When may you issue a citation?
Beneficiaries annoyed PRs taking too long to apply for a grant
Three types of citations
PTA
pta is my citation for chhood
Citation to take probate
Citation to propound will
Citation to accept or refuse a grant
What happens in citation to take probate?
When should you use use?
T - take - t in intermeddling
Executor lost right to renounce by intermeddling
But not applied for grant and no signs will
Requires executor to apply
If doesn’t, citor can apply to court for order
allowing executor to be passed over
^ grant with will annexed issued to next in priority list under r 20
(remember u apply for citation to HMCTS first. then court could become involved if make order)
What is/happens in citation to propound will?
Propound = authenticate will by obtaining grant
If get less from current will than intestacy or previous will
Can cite (name) executors named in the new will and anyone with interested (bens/PRs/creds) later will to propound it
If never enter appearance or proceed diligently to propounding (by getting grant)
can apply to court for grant as if new will invalid
What is citation to accept or refuse grant and when can it be applied for?
If someone prior right to a grant
And not applied/shows no intention
Issue citation to accept or refuse
If then take no steps to get grant, grant may be issued to citor if have prior right
What is passing over and benefit?
Court order which passes right to take grant to another
Even if intermeddled/lost right to renounce
If someone unwilling to take grant, probs won’t be very good PR - passing over prevents
What action can beneficiaries take regarding ISSUE of grant
- Prevent issue of grant via caveat
- Compel issue of grant via citations
- Passing over
In compelling due administration of estates, what information may beneficiaries wish to see?
Entitled to reasons?
ACCOUNTS
- can ask
- if refuse, apply court order providing accounts and inventory
REASONS
- not auto entitled reasons for discretionary decisions
- apply court - trust law may permit
- if not, DSAR or court proceedings disclosure requirements may permit
What happens at end of administration but before final distribution of estate re accounts?
Who from / to?
What must each do?
Prep estate accounts
Send to residuary beneficiary
Residuary beneficiary signs off - discharging from further liability
Who can administration proceedings be brought by?
Anyone interested
(i.e. beneficiaries, PRs, creditors)
What are the two categories of administration proceedings?
Applications limited to a particular issue
e.g. PRs ask for court interpretation
Applications for a general administration order
- court supervise PR
Examples of applications limited to a particular issue?
May be non-contentious
e.g. PRs seek guidance from court on performance of a duty or meaning of words used in a will
What are applications for a general administration order?
Under the order, court supervises PRs, meaning they cannot exercise their powers w/o court’s permission
Last resort.
Alternative option to court instead of general administration order?
Court appoint a judicial trustee to act as PR (either with another person or alone)
How long do PRs have to distribute estate and what is this commonly referred to?
One year from death
‘Executor’s year’
(Nb applies to administrators as well)
What actions can beneficiaries bring against PRs?
Breach of fiduciary duty
(trusty)
Devastavit
(torty)
Duties of PRs
Liabilitiy of PRs
Duties = distribute according to law
devestavit = personally liable for breach
- strict liability - as long as loss
- generally not for co-t
e.g. failing protect value or pay
^ ‘he wasted’
When will a PR breach fiduciary duties?
Conflict between their duties and personal interest
What happens if PR breached fiduciary duties by own-interest conflict ?
Will they always be liable?
What if bought from trust property?
if own interest conflict account profits. voidable transaction. unless consent.
account estate for any unauthorised profits
regardless of loss suffered to estate
If purchased property from estate, transaction voidable by beneficiaries within reasonable time
UNLESS authorised
- all bens over 18;
- will; or
- court order
When can beneficiaries bring a DEVASTAVIT claim against PRs? Inc examples.
PR caused loss to estate by BREACH OF DUTY
(not whether PR culpable)
E.g.
- misuse assets
- e.g. takes for personal use 🔧
- maladministration
- e.g. distribute incorrectly, fail to collect estate 🙊
-
negligence
(w/o reas care, failed to protect value) 🤷♀️
nb can fall into multiple categories
Defences available to claim for devastavit
(in brief)
- s 61 Trustee Act 👧
(acted honestly and reasonably - eg beneficiary called self “Mrs” - not at fault) - Exclusion clause in will 📄
(modifies or releases from breach) - acquiescence of adult beneficiaries 😴
(ie over 18 informed consent) - protection against unknown or missing claimants
(ads / Benjamin order etc) - limitation ⏰
(12 years from date right to receive, but no time limit if fraudulent or took assets for own use)
What TYPE of liability does a PR have for claim of devastavit?
Personally liable
i.e. pay out of own resources
What may a beneficiary or creditor do if a PR distributes assets to someone who is wrongly entitled?
(explain each one)
- Bring proprietary claim to the ASSETS or their traceable proceeds from recipient
unless bona fide purchaser for value without notice -
personal claim for compensation against RECIPIENTS
all remedies against PR must have been exhausted
could still try bring personal claim for negligence against PR etc
Time limit personal or proprietary claim againstTP
12 years
Once PR has got grant, is their office ‘for life’?
What must court ensure?
Yes
But court has discretion to replace or terminate (w/o replacing)
Must ensure at least one PR remaining
Court guided by bens welfare in exercising discretion
What rights do PRs owe to creditors of estate?
- to pay liabilities and debts
- perform contractual obligations, but only to extent relate to assets in the estate
so causes of an action continue against PRs
Limitation period for creditors to bring claim against PR for failing perform contractual duties?
6 years
Examples of devastavit claims which creditors could bring against PR
- paying beneficiary before advertising for creditors so there was insufficient left to pay all creditors
- failure to collect and preserve and deceased’s estate
- spending excessive amount on funeral
- paying debts of an insolvent estate in wrong order
What defence may be available to PRs against creditor devastavit claim?
s27 - showing unaware existence
(advertised in gazette and waited 2 months)
Key differences between trustees and PRs?
- trustees can retire / Prs can’t without cost order
- diff limitation periods - sep cards
What happens if appointed as trustee and PR for same estate for gifts of:
- real estate
- personalty
Transition occurs
real estate:
- PRs mark transition by executing an assent to themselves as trustees
personalty:
- Become trustees when finished administering estate (paying debts and distributing assets)
Limitation period for claim breach trust::
- PR
- Trustee
12 years from date on which right to receive it accrued (if PR)
6 years against trustee
Limitation period for bringing actions for
(a) PR’s fraudulent breaches of duty or
(b) PR taken property from the estate for own use?
No time limit
Risks if PR distributed estate not knowing of beneficiary’s right?
That beneficiary could bring claim
PR would be PERSONALLY liable
If waited 2 months after notice, fine.
If no notice, 12 years ot bring claim.
Protection for PR against an omitted beneficiary who did not know existed?
Impact on omitted beneficiary?
s 27
advertising intention to distribute Gazette and local newspaper if property is land
and waited 2 months
The beneficiary (or creditor) can seek entitlement from the beneficiaries who wrongly received estate
What should PRs do if cannot find a beneficiary or creditor who they know exists?
What can they not rely on for protection?
imp
Can’t rely on s 27
-
Retain assets in case Cl appears
- unpopular with other beneficiaries
- good if small amount - Obtain indemnity from beneficiaries that they will meet a claim if they reappear
- only works if beneficiaries have enough money -
Insurance
- expensive
- difficult to know how much to insure
- if shortfall, liable for difference - Benjamin order
- apply to court to authorise distributing as if claimant dead
- court requires evi that full enquiries
- gives PR full protection but may still recover from beneficaries
- expensive
s 27 does not protect from……
- successful family provision claimants
- where knew existed but couldn’t find
What protection is offered to PRs under section 61 Trustee Act?
Must court offer this protection?
For what claims will this protection be granted?
Court discretion
Totally or partially relieve PR from personal liability for devastavit
if acted honestly and reasonably and ought fairly to be excused
for the devastavit and failure to obtain court directions
If ben brings personal claim against wrongly paid recipient, how much can recover?
What must have done?
Will be equal to amount which beneficiary cannot recover from PRs.
Must have exhausted claims against PRs
When is IHT due on LCTs?
- on transfer (Apr-Oct then pay that Apr)
- then if more due after reassessment, 6 months post death
what grant applications need to be done online?
only grant of probate by professionals - subject to some exceptions
e.g. where application is to prove a copy of the will
grant of letters of admin are made by post and CAN be amde online in certain conditions but don’t need to be
What is a statutory trust?
Trust that is imposed by intestacy rules over all property when person dies intestate
All categories except parents, grandparents and spouses
Means they take estate EQUALLY
Who holds statutory trust?
PRs
Can you sell property held under a statutory trust if you are a PR?
Yes
Would do if necessary to raise cash to pay debts and expenses
Also to appropriate assets in or towards beneficiary’s share if got ben’s consent
What is appropriate of asssets?
power to use assets to satisfy ben’s share in full or part
PR to statutory trust - can they appropriate assets?
Yes - and can count towards beneficiary’s share if have** beneficiary’s consent**
Primary beneficiary under intestacy rules
Surviving spouse who married to at time of death
(quality of relationship irrelevant. not apply if legally divorced or marriage legally void e.g. underage or one party already married)
When is marriage voidable?
E.g. under duress or mental disability when entered
Valid and entitled under intestacy until court makes nullity order
Cohabitee and civil partner entitlement under intestacy rules?
CP - as if spouse
cohabitee - none
Meaning of issue under intestacy rules
adopted?
step?
All direct descendants
ie children, grandchildren, great grandchildren
Adopted children etc included
Inc those whose parents were not married at time of birth
(e.g. unmarried but still father. still entitled)
Step children NOT unless adopted
How long must spouse survive the intestate?
28 days - starting date of death
If die within that, estate distributed as if they hadn’t
what does surviving spouse receive intestacy?
- Receives personal chattels
- Receives statutory legacy £322k
- free of tax and costs plus interest until death until payment - Any residuary estate is divided in half. One half held on trust for spouse. Other half held on statutory trust for issue.
What is NOT a personal chattel for purposes estates?
(nb: not just intestacy)
Tangible moveable property, other than any property that:
1. Consists of money or security for money; or💸
2. Was used at the death of the intestate solely or mainly for businesses purposes; or👨💼
3. Was held at death of intestate solely as an investment 📈
Details re statutory legacy fee
Spouse or civil partner gets £322k their estate if died after 26 July 2023
If residuary estate worth under this, spouse receives it all
If family home held as tenants in common or intestate’s sole name and die intestate, what happens?
Goes under intestacy rules and not pass under survivorship
If family home passes on intestacy, what could ____ require PRs to do?
What if gerater in value than their entitled share?
Spouse or civil partner
If forms part of RESIDUARY ESTATE passing on intestacy
can require PRs to apropriate FAM home in full or partial satisfaction of their interest
If:
- in intestate’s sole name or TiC (i.e. not joint tenancy)
- spouse/civil partner must be living in property
if worth more than their entitlement, may still require appropriation - provided they pay the difference to the estate
Formality requirements for spouse requiring PR to appropriate family home if died intestate?
Time limit?
Formally elect to exercise
notify the PRs in writing
within 12 months of the grant of representation
Order of class of beneficiaries to part of estate that does not pass to spouse under a statutory trust
- Children
- Grandchildren(if parent’s died)
- Greatgrandchildren (if parent and grandparent died)
What are children/grandchildren’s interests contingent on under statutory trust?
Reaching 18 or marrying/forming a civil partnership under that age
(contingent until reach 18)
If there is a surviving spouse or partner and no issue (i.e. children/grandchildren), what happens?
Whole estate absolutely to the surviving partner absolutely
Entitlement to a residuary estate under intestate rules if there is no surviving spouse or civil partner
- Issue of the statutory trusts, but if none:
- Parents (equal shares);
- Brothers and sisters;
- Half sisters/brothers;
- Grandparents (equal shares);
- Full auntys and uncles
- Half auntys and uncles
- Crown, Duchy of Lancaster or Duke of Cornwall (bona vacantia)
If entitled to residuary estate and no surviving spouse/children, how much do you get?
Full amount
OR if some else in same class (eg two parents) equally
What is the bona vacantia rule
If intestate not survived by any relatives under intestacy rules, estate passes to Crown (or Duchy of Lancaster/Cornwall if live in Lancashire or Cornwall)
Is there discretion under bona vacantia?
Yes, could provide for dependents or others who may reasonably expected give something to
(e.g. cohabitant)
But policy is to require inheritance act proceedings to be made anyway! lol! money no object!)
How could you apply for provision from an estate if want interest in an intestate’s estate which has gone to crown?
Inheritance and Dependents Act 1975 - apply to court for provision from an estate.
(that is treasury solicitor’s policy) - so can weigh up any other claims
If you are adopted, which side’s estate do you have right to under statutory trust?
If you had a contingent right to parent’s before adopted, retain that
ONLY blood parents tho and not another blood relatives
Other than that, it is adopted family
Do intestacy rules apply if your parents are unmarried?
Yes (so you would still be entitled to grandparents estate etc)
If a child dies intestate and their parents aren’t married, who gets the residuary estate?
It is presumed the individual hasn’t been survived by their father or anyone on their father’s side
Doesn’t apply if the dad is named on birth certificate
Can be disproved
What happens if no attestation clause and someone is seeking to challenge validity of will? What are the difficulties with this?
Need affidavit from both witnesses explaining what happened when the will was executed.
Might be dead or have moved.
Can a PR appropriate assets in or towards satisfaction of beneficiary’s share under statutory trust?
Yes
If is above amount entitled to, the beneficiary can pay the remainder
pretty sure this applies even if not matrimonial home
s41 admin estate acts
how to apply for citation
apply to HMCTS
if citation to propound or take probate issued, then fail to do so, may apply court order
