Wills / Probate Flashcards
What property passes outside the will?
1) joint property - joint tenancy = survivorship
2) insurance policies
3) pension
4) trust property
Requirements for a valid will?
1) capacity
2) intention
3) formalities
When is there not an assumption of knowledge and approval?
When blind/ illiterate / suspicious circumstances
How is an attestation clause written?
Signed by T in our joint presence and then by us in his/hers
What happens if no attestation clause?
Affidavit of due execution
What is s1 wills act?
If more than 2 witnesses to a will and beneficiary gifted then that gift can be allowed
When is there not presumed intention of a will?
1) if T blind or illiterate
2) where another signed on behalf of T
3) suspicious circumstances
Ask client about overseas assets
1) foreign assets might not pass under UK will
2) a new UK will may revoke a foreign will
Inheritance tax reliefs? (Not lifetime gifts)
1) agricultural property relief - farmer leave farmland to next of kin without tax - owned two years (50% or 100%)
2) charity exemption
3) business assets owned for over 2 years (business property relief) either 50% or 100%
4) spouse - if left all to spouse then they can take allowance of £325k and add to hers
What is current tax free nil rate band?
£325k
When is charity exemption
If 10% of net estate left to charity then 36% not 40%
What is net estate for IHT
Assets - debts and exemptions(bar charity exemption), reliefs and NRB
What is transferable NRB?
If partner dies without using all of NRB then the remainder can be transferred to surviving spouse for when they pass
What is residence nil rate band?
IHT free amount up £175,000
- extra amount added to NRB
- estate must pass to lineal descendant
- as long as property after July 2015, even if sold it, would still benefit
Lifetime gifts
Potentially exempt. Become exempt after 7 years. If dies within then becomes a chargeable transfer
(Lifetime gifts to spouse and charity exempt from outset)
£3k a year are not subject to IHT
(Unused can be carried forward one year so max £6k)
What s for valid will?
S9 Wills Act 1837
What is survivorship clause of will!
Include time someone must survive you for
How to revoke a will?
- Marriage
- Destruction
- Further condicil
When is a will not revoked by marriage
- Made in expectation of forthcoming marriage
- T does not intend for will to be revoked by marriage
When are alterations to a will valid?
Only if executed like a will eg signed, in presence of witness who attest
How many executors if minor child?
2 minimum if administrators (intestacy)
1 minimum if executors (will)
What is s29 Trustee Act
Reasonable remuneration to a trustee for time spent and work done but only if T is:
1) Trust corporation
2) T “acting in a professional capacity”
What does divorce have on effect of executors?
Remove former spouse from the will entirely
When can you renounce executorship?
When not meddled/ assisted
Or could ask to have power reserved
Impact of general legacy being sold?
T pay it out of the estate
What is a longstop beneficiary?
Outcome effective if all other benes deceased
Can executor witness will?
Yes but cant be beneficiary if witnessed
What is the rule in strong v bird
If executor and debtor of estate, cannot bring action against themselves
- appointing as executor showed loan was a gift as Ts must call in debts to estate and cant call one onself
What are two types of business property relief?
100%~ where value attributable to certain property eg business/ company shares
50%~ where attributable to other business property eg shares in stock exchange / land, machinery
What is yearly annual exemption for lifetime transfers?
£3k - can transfer next year so max £6k
AND
Small gifts of £250 or less
What are exemptions for gifts in consideration of marriage?
A. £5k by parents
B. £2.5k by GP
C. £1k by other
Taper relief for lifetime transfers
0-3: full
3-4: 80%
4-5: 60%
5-6: 40%
6-7: 20%
Requirements for common intention constructive trust?
- Common intention
- Relied on
- Contributed / detriment
How many trustees to sell land?
Minimum 2
How many trustees to sell land?
Minimum 2
What assets pass to PRs without GOP?
1) payment to person appearing to be beneficially entitled as long as does not exceed £5k
A. Money in national savings bank
B. Premium bonds
C. Money in building society
2) chattels
3) cash
Form for GOP (will)
- PA1P form and fee if estate over £5k, no fee if less
Form for LOA? (Intestate)
PA1A
Order of priority to apply for LOA with will annexed? / what is it?
Where will valid but no executor
- Bene with largest portion
Order of priority to apply for LOA with will annexed? / what is it?
Where will valid but no executor
- Bene with largest portion
Order of priority for LOA
- Spouse
- Children
- Parents
What can beneficiaries do if issue with validity of will?
- Lodge caveat at Probate registry to stop grant being issued (lasts 6 months)
How can benes compel issue of a grant?
- Citation - notice issued by district judge / probate reg
- S116 Senior Courts Act: Passing over or removal - court will apply in certain circumstances if executor cant be traced
What is executors year?
Executor cant be made to distribute until 1 year from date of death
What is s61 Trustee Act
T acted honestly and reasonable (defence to breach)
How should T protect self when distributing estate?
Wait 6 months from grant to distribute
Insurance
Benjamin order
