Wills and Estate Administration Revision Flashcards
1
Q
If a beneficiary has predeceased the testator, the gift to them will lapse
A
2
Q
If the subject of a general legacy is not in the estate, the beneficiary is entitled to require the executor to purchase it if the estate has sufficient funds
A
3
Q
An unborn child already conceived when the class closes and subsequently born alive is considered a living beneficiary
A
4
Q
A life estate ceases on the beneficiary’s death
A
5
Q
A life estate ceases on the beneficiary’s death
A
6
Q
Benjamin Order
A
A court order giving the personal representative (PR) leave to distribute the estate taking into account a possible claim from a person who cannot be found
7
Q
Individuals have six months to make financial provision claims, but there is no such time limit for known creditors
A
8
Q
A variation allows a beneficiary to change who receives their inheritance. To be effective for tax purposes, a variation must be made in writing, made within two years of death, and not made for monetary consideration
A
9
Q
Under the 1975 Act a person who was living with the decedent as a partner (such as the man’s long-term partner) during the whole of the two-year period immediately before the decedent’s death is eligible to bring a claim under the Act even if they were not married or civil partners
A
10
Q
If there are concerns over the validity of a will what should the concerned parties do whilst the will is further investigated?
A
Lodge a caveat at the Probate Registry
Caveats are valid for up to six months, and if the matter cannot be resolved, it may end up with a judge determining the issue
11
Q
Property specifically gifted in the will should not be used to pay debts unless other assets have been exhausted
A
12
Q
The inheritance tax threshold is currently £325,000
A
13
Q
An estate can be excepted if specified transfers do not exceed £150,000 in the seven years before the deceased’s death.
A
14
Q
A marriage revokes a pre-existing will unless it is clear from the will that: (1) the testator was expecting to marry a particular person, and (2) the testator intended that the will should not be revoked by the marriage.
A
15
Q
General legacy: if the source of the funds no longer exists or has insufficient funds to meet the legacy, the executor can meet any shortfall from other cash or assets in the estate.
A
16
Q
Lapse applies when a beneficiary dies before the testator
A
17
Q
A minimum of two administrators is required when there is a minor beneficiary
A
18
Q
Parents take an deceased’s estate only when there is no surviving spouse or issue
A
19
Q
A testator is presumed to have had mental capacity unless someone challenging the validity of the will proves the testator lacked capacity.
A
20
Q
Merely being elderly is not a basis for assuming a person lacks capacity.
A
21
Q
PRs are not entitled to charge for services unless it is authorised in some way-either by the court, the will, or the beneficiaries.
A
22
Q
The court can authorise remuneration for PRs for past, present, or future services.
A
23
Q
The court can authorise remuneration for PRs for past, present, or future services.
A
24
Q
A citation to accept or refuse a grant is used to clear off a person with a prior right to any type of grant who has not applied for a grant and shows no intention of doing so.
A
25
A caveat is used to stop the issue of a grant, rather than force it.
26
To be valid, a will must be in writing and signed by or on behalf of the testator in the presence of two or more witnesses present at the same time who each sign the will in the presence of the testator. The witnesses must sign in the presence of the testator, but they do not have to sign in the presence of each other.
27
When a testator is divorced, the appointment of their former spouse as executor is ineffective, and the former spouse is treated as having died on the date of the divorce for these purposes.
28
The PR power to invest does not include the power to purchase land jointly with anyone else
29
A citation to take probate is used when an executor has lost their right to renounce by intermeddling in the estate but has not applied for a grant and does not intend to do so. Once cited by the Probate Registry, the executor must proceed with an application. If they do not, the citor can apply for a court order allowing the executor to be passed over.
30
A caveat is used to prevent the issue of a grant of representation
31
A grant de bonis non is a second grant made to allow the completion of the administration of the deceased's estate following the death of the sole or last personal representative.
32
A chain of representation occurs when a sole executor dies and that executor's executor takes a grant of probate
33
Under section 27 Trustee Act 1925, a personal representative can receive protection from claims by unknown creditors and beneficiaries by advertising the deceased's death in the London Gazette, a local newspaper, and any other appropriate newspaper. The personal representative must then wait at least two months from the date of the advertisements in order to receive protection.
34
Waiting six months from the issue of the grant of probate protects against claims under the Inheritance (Provision for Family and Dependants) Act 1975, which seek to challenge the estate distribution.
35
When a person dies intestate without a spouse or civil partner, a strict order of entitlement under the intestacy rules applies to determine who will inherit the estate. If there is no living relative who fits into any of the categories listed, the estate passes back to the Crown by a process called 'bona vacantia'
36
A will is automatically revoked when an individual gets married. So if a new will is not made then before the individual dies then they die intestate
37
The order of entitlement to a grant under rule 22 of the Non-Contentious Probate Rules: a surviving spouse or civil partner is at the top of the list. Next are issue of the decedent, then parents, and then surviving brothers and sisters.
38
Former spouses are eligible to claim under the Inheritance (Provision for Family and Dependants) Act 1975if unmarried but may be barred from a claim under a 'clean break' divorce, which is the case here
39
A beneficiary's right to trace and recover property is lost against a bona fide purchaser
40
A beneficiary can bring a claim against a person who wrongly received estate assets
41
For a will to be valid, the testator must have acted with an intention to make the particular will. A challenger may prove lack of intention by showing the testator made the will as a result of duress (that is, as a consequence of a threat of force), due to fraud, or because of undue influence (that is, something that overpowered the testator's volition)
42
There is a time limit for bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975. An application must be made within six months of the issue of the grant of representation to the personal representatives.
43
A new will impliedly revokes the existing will, but only to the extent that it is inconsistent with the existing will. Therefore, executing a new will is not a definite way to achieve full revocation unless the new will contains an express statement that it revokes all earlier wills.
44
Any money held in a joint bank account with a spouse passes solely to the spouse under the right of survivorship.
45
When a will leaves a gift to each member of a class who meets a condition, the class closes on the date of the testator's death and includes only beneficiaries who were living on that date.
46
A witness also being a beneficiary does not invalidate the will. Instead, any gifts to the witness-beneficiary will fail
47
To be excepted, the estate's total gross value plus specified transfers cannot exceed either (1) the inheritance tax threshold, currently £325,000, or (2) £3 million if the net chargeable estate does not exceed the threshold.
48
An estate can be excepted if specified transfers do not exceed £150,000 in the seven years before the deceased's death.
49
Undue influence must be proved by the person alleging undue influence by showing that the testator surrendered to intolerable pressure
50
Knowledge and approval must be shown by the person seeking to enforce the will when there are suspicious circumstances
51
Without an attestation clause evidence may be required to prove the will was properly executed
52
Demonstrative legacy
A gift of cash which is directed to be paid from a specified fund or pool
53
Pecuniary legacy
A gift of cash
54
If a specific legacy fails, the item concerned passes as part of the residue of the estate
55
Only those in a marriage or civil partnership with each other, not cohabitants, can be surviving spouses for the purpose of intestacy rules
56
A life assurance policy written in trust for the insured's children passes outside the insured's will or intestacy and is not subject to inheritance tax on their death
57
A life assurance policy written in trust for the insured's children passes outside the insured's will or intestacy and is not subject to inheritance tax on their death
58
There is nothing to prevent a beneficiary from being an executor
59
Types of grant of representation
1. Probate: the deceased left a valid will appointing an executor who is willing to act as PR
2. Letters of administration with will annexed: the deceased left a valid will, but there is no executor willing or able to act as PR
3. Letters of administration: the deceased did not leave a will
60
When a will appoints no executor and leaves a share in the estate to a minor under 18 or a life interest arises at least two administrators must be appointed
61
Clearing off
When a residuary beneficiary applying for a grant of letters of administration with will annexed must explain why there is no executor applying for probate
62
If the deceased held an asset in a name differing from that in their will one grant will be issued, indicating both names, which must be explained on the PA1 form
63
If there is no attestation clause, a witness or other person present when the will was executed must provide an affidavit of due execution
64
What is the appropriate process for a beneficiary to follow if they believe that the will may be invalid due to a lack of mental capacity on the part of the testator?
Caveat
65
When an executor has intermeddled in the estate but has not applied for a grant and does not intend to do so, an interested party may ask the Probate Registry to issue a citation to take probate
66
When an executor has intermeddled in the estate but has not applied for a grant and does not intend to do so, an interested party may ask the Probate Registry to issue a citation to take probate
67
If the PRs advance capital to a beneficiary before they are entitled to it under the will or intestacy, and the beneficiary dies before satisfying the age contingency, does their estate have to repay the amount of the advance?
No
68
How long should PRs delay distributing the entire estate if they are worried about a possible claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975?
6 months from the date of grant
69
To be effective for inheritance tax and capital gains tax purposes, both a variation and a disclaimer should be made within 2 years from the date of death
70
An assent by the PRs vests the legal title to the asset in the beneficiary
71
A PR is also a beneficiary of a specific legacy. Does the PR have to assent to themself to vest the legal title in themself?
Yes
72
A beneficiary does not have a legal or equitable interest in the estate assets before administration of the estate is completed, they only have a right to have the estate properly administered
73
What is the time limit for bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
6 months from the date of the grant, or later with the leave of the court
74
Can an ex-spouse of the deceased bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
Yes, provided they have not remarried and there is no agreement preventing a claim such as a term of a clean break divorce
75
A cohabitant can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975if they were living with the deceased as a spouse, civil partner, or same-sex partner for the whole of the 2-year period before the death
76
The standard of reasonable financial provision for a spouse applicant Inheritance (Provision for Family and Dependants) Act 1975 is what would be reasonable in all the circumstances, whether or not required for their maintenance
77
When there is more than one person of equal rank entitled to administer an estate but one has a vested interest and one has a contingent interest in the estate, the court generally prefers an application by the vested interest beneficiary
78
Under rule 20 NCPR, the beneficiaries have the best entitlement to act as administrators when an executor has not been named or unable or unwilling to act
79
The executors have the power of appropriation. This means that they can use an alternative asset to satisfy a legacy or interest in the estate, provided no specific beneficiary is affected. However, unless the will provides otherwise, it is not permissible for a PR to make an appropriation in their own favour to satisfy a pecuniary legacy with an asset other than cash or the equivalent of cash, such as government stocks or quoted shares. The power of appropriation does apply to beneficiaries who are also executors but subject to this limitation.
80
If a beneficiary has predeceased the testator, the gift to them will lapse (fail)
81
If a testator makes a gift to a child or other issue who die before the testator and leave living issue, the living issue receive the gift.
82
Even if an executor is deceased anyone applying to obtain a grant of representation will have to clear off the deceased executor and explain why they are not applying
83
The order of entitlement to a grant of letters of administration with will annexed is set out in rule 20 of the Non-Contentious Probate Rules ('NCPR'). Under this rule, the residuary beneficiary, will have the best entitlement to a grant of representation.
84
Personal representatives have a variety of powers to support the administration of an estate. The personal representatives generally have no authority to carry on the deceased's sole trade, but they can do so in order to sell the business as a going concern
85
Solicitors should obtain medical evidence and advice on a client's mental capacity if there are concerns about capacity
86
An executor has discretion to advance the sum held (the capital) to the beneficiary even though if they have a contingent interest
87
A class gift is a gift of property to be divided among beneficiaries who fulfil a general description. Class closing rules apply to determine how and when a class gift should be distributed. Generally, a class closes-to the exclusion of any potential beneficiary not then living-when at least one beneficiary has a vested interest. When there is a contingent gift, the class closes at the date of the testator's death if there is any living beneficiary who has met the condition. If there is no beneficiary who meets the condition, the class remains open until the first beneficiary does.
88
When the deceased is survived by a spouse or civil partner and issue, the spouse or civil partner will receive personal chattels, £270,000, and one-half of the residue. The deceased's issue will take the other half of the residue. However, a surviving spouse can require the personal representatives to appropriate the family home to the spouse in partial or total satisfaction of their interest. If the property is worth more than the spouse's entitlement, the spouse can still require appropriation provided they pay over the difference-known as equality money-to the estate.
89
The executor has a wide discretion about whether to advance capital, and the beneficiary is not required to demonstrate a need for
90
The executor has discretion to advance sums held (the capital) to the beneficiaries even if their interest is contingent
91
Shares can be sold to raise funds for IHT payment owed prior to grant of representation
92
Life assurance proceeds are payable to the estate, the insurance company may pay this sum directly to HMRC for the payment of IHT prior to grant of representation
93
When a person dies intestate without a spouse or civil partner, the strict order of entitlement under the intestacy rules applies to determine who will inherit the estate. If a person in the category of issue has died before the deceased, the person's issue take their parent's share per stirpes, provided the issue attain age 18 or marry earlier.
94
Employee will receive only £800 as a preferred debt payment and any remaining money owed is classified as ordinary debt
95
A secured debt, such as the mortgage on the rental property, should be paid from the asset against which it is secured.
96
Unsecured debts should be paid from the residuary estate, rather than from specific legacies
97
Property specifically gifted in the will should not be used to pay debts unless other assets have been exhausted
98
A minimum of two administrators is required when there is a minor beneficiary
99
The rules of intestate succession apply when a person dies without a will. Under these rules, when the deceased is survived by a spouse or civil partner, the spouse or civil partner will receive personal chattels, £270,000, and one-half of the residue. The deceased's issue will take the other half of the residue.
100
A Benjamin Order is a court order giving the personal representative leave to distribute the estate, taking into account the interests of a known claimant who cannot be found. It is the only way for the executor to gain full protection from a future claim by a known beneficiary
101
Waiting six months protects against claims under the Inheritance (Provision for Family and Dependants) Act 1975, which seek to challenge the estate distribution under the will.
102
Under section 27 Trustee Act 1925, an executor can receive protection from claims by unknown creditors by advertising the decedent's death in the London Gazette, a local newspaper, and any other appropriate newspaper. They then must wait at least two months from the date of the advertisements before distributing the estate.
103
Personal representatives have the power to sell and lease estate property.
104
Personal representatives have a variety of powers to support the administration of an estate. The personal representatives generally have no authority to carry on the deceased's sole trade, but they can do so in order to sell the business as a going concern
105
When the sole executor of an estate dies and that executor's executor takes a grant of probate for the deceased executor's estate, the executor automatically becomes the executor of the original estate. This is known as a chain of representation.
106
No presumption of undue influence applies to wills-undue influence is something that must be proved
107
To be valid, a will must be in writing and signed by or on behalf of the testator in the presence of two or more witnesses present at the same time who each sign the will in the presence of the testator. It is possible for another person to sign on behalf of the testator if they are blind or illiterate. However, the testator must be present, and the will should be read to them before the will is signed on their behalf.
108
If a beneficiary has predeceased the testator, the gift to them will lapse
109
A gift to two or more people as joint tenants will not lapse unless all the recipients die before the testator. If one joint tenant dies, the surviving joint tenants are entitled to the entire gift.
For example, if a gift of shares were left to two sisters jointly but one sister died before the testator, the entire gift would go to the surviving sister
110
When a spouse died intestate, the spouse or civil partner of the deceased is entitled to a statutory legacy.
111
A variation allows a beneficiary to change who receives their inheritance. To be effective for tax purposes, a variation must be made **in writing**, made within **2 years** of death, and not made for monetary consideration. A verbal variation is not effective.
112
When a gift is to two or more people "in equal shares", the death of one of the beneficiaries will not entitle the surviving beneficiary to receive the share of the deceased beneficiary. Therefore, the other half of the shares will lapse and fall into the residue
113
The basic rule of succession is that a will speaks from the date of death unless a contrary intention is apparent in the will. However, this basic rule will not apply if a contrary intention is apparent in the will. When a testator makes a gift of "my shares", they are normally taken to have shown an intention contrary to the basic rule. Instead, the testator intended for the beneficiary to receive the property as it was on the day of the will's execution and not on the day of the testator's death. Therefore, if the property has been sold then the gift will fail.
114
Everyone aged at least 18 has legal capacity to make a will
115
Writing "revoked" across a will is not sufficient to constitute destruction of the will
116
When a commercial building is sold to the buyer and is less than 3 years old it is deemed a standard-rated supply for VAT purposes
117
When property is held for a minor beneficiary, PRs may apply the income for the maintenance, education, or benefit of the minor. Otherwise, the PRs must accumulate the income. Once the beneficiary turns 18, ongoing income must be paid to them until their contingent interest is satisfied.
