Wills and Administration

What does it mean for a gift to adeem?

A specific gift will FAIL if:

it is no longer part of the testator’s estate;

is subject to a binding contract for sale; or

It no longer meets the description of a will

What is the ‘commorientes’ rule?

If it can’t be determined who died first out of a testator and beneficiary, the law is triggered and provides that the younger person survived the older person

When does a gift to a beneficiary fail where their spouse have come to witness the will?

If there are not TWO more witnesses

For an insolvent estate, which expenses could be paid back in full?

Funeral expenses

Who pays inheritance tax payable on lifetime gifts and when should it be paid?

It will be paid by the recipient of a gift and will be due six months after the END of the month of the death

What is a Benjamin order?

A court order giving the PR leave to distribute the estate taking into account a possible claim from a person who can’t be found

Very protective for PR against liability!

What conditions need to be met for a variation to be effective? Ie son wanting to pass house left by his mother to daughter instead

1. It must be in writing

2. Be made within two years of the death

3. It should not be made for monetary consideration

What is an excepted estate?

An estate which owes no IHT and does not have to file a formal IHT account. To be excepted, the gross value of the estate plus specified transfers cannot exceed either

The nil rate band OR

£3 million if the net chargeable estate does not exceed the nil rate band

Who pays IHT due and who suffers the burden of the IGT payable on the estate?

Executor pays IHT

The residuary legatee (beneficiary) suffers the burden

Do step children fall under definition of ‘children’?

No!

Just biological children, adopted children and illegitimate children

For chains of representations, how does it work?

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 executor of the original estate

What is the process for calculating IHT?

1. Add up value of the persons assets that are subject to IHT

2. Subtract any applicable nil rate bands

3. Deduct expenses ie funeral, debts etc

4. Then apply the relevant NRB

5. Then tax remaining at 40%

After how many days from the date of the deceased death can their spouse be entitled to anything of theirs under the intestacy rules?

28 days

Under the Inheritance (Provision for family and dependents) Act 1975, who is eligible to claim?

Children of the deceased are always entitled

Surviving spouses or civil partners

Persons being maintained by the deceased

Persons living with the deceased during the whole two year period immediately before the death as partner of the deceased

What is the ground for bringing a claim under the Inheritance (Provision for family and dependents) Act 1975?

That the reasonable financial provision has not been made for the applicant

What is the time limit to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

Within 6 months of the issue of the grant of representation to the PRs

Under the NCPRs, if there are residuary beneficiaries that have equal rank but one has a vested interest and the other a contingent interest, under the rules, which application to administer the estate would the court favour?

The beneficiary with a vested interest

What is a beneficiary’s best course of action when the executor is not interested in administering an estate?

Seek a citation to accept or refuse a grant - will be used to clear off a person with a prior right to a grant who has not applied for a grant and shows no intention of doing so

For nominated property to a beneficiary, ie national building society accounts, what is the max sum it applies to?

£5000 - it does not apply to figures that exceed this