Wills 1 Flashcards

Question

No presumption of K&A: blind/illiterate, no English, signed by another, suspicious -> Affidavit of K&A

Answer 1

If not in attestation clause (explaining circumstances of will execution) then affidavit of K&A needed when submitting will to probate.

Answer 2

Only a part made under undue influence, rest may be valid as long as it doesn't upset the tenor of what remains. Requires evidence that testator was didn't intend to make the will they signed (persuasion isn't undue influence)- burden of proof on allegator's evidence (fairness irrelevant, consider physical + mental strength of testator.)

Answer 3

- must be in writing and signed by testator (or someone else on their behalf) intending to give effect to will - signature must be made/acknowledged w/ 2 adult witnesses with capacity present - witnesses must each sign the will in the presence of testator (not necessarily presence of each other) testator acknowledges to 2 witnesses that it is their signature (can be done after they've signed)

Answer 4

"Signed by testator in our joint presence then us in theirs" No legal obligation but raises presumption of due execution (s9 Wills Act followed) If none/poorly drafted -> affidavit of due execution by witnesses Amended in special circumstances (signed on behalf/blind/illiterate)- provide evidence of knowledge & approval (failure to do so can be solicitor negligence)

Answer 5

Any gifts to attesting witness or their spouse are void. Document remains valid but beneficiary/spouse cannot inherit under the will (solicitor should notify them) UNLESS at least 2 other witnesses not affected by s15 present or a properly executed codicil (then s15 disregarded) Appointment of beneficiary as executor still applies even if s15 denies them inheritance. Professional executor as witness- can still be remunerated for this role.

Answer 6

Commencement Revocation Burial/funeral wishes Appointment of executors & trustees Appointment of guardians Specific/general/pecuniary/residuary gifts Administrative clauses Date & Attestation

Answer 7

Full name + address of testator/job Any other names/nicknames known by (also confirmed in Grant of Representation) otherwise unable to administer all of estate Date here/at end

Answer 8

I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will - Only 1 exists at a time (if there are more than 1, later one impliedly revokes earlier one where inconsistent/repeats earlier terms - Valid without this - Other methods for revoking will in whole/part: codicil, destruction, testator's marriage/civil partnership/divorce, effective manuscript amendments. Most common is express revocation by later will.

Answer 9

I WISH for my body... Not legally binding on personal representatives (PR) but will be followed where possible

Answer 10

- Role of PR is to collect the deceased's assets -> administer the estate (s25 AEA 1925) - PR pays deceased's debts/administration costs + expenses -> distributes assets to the corrects beneficiaries - PR appointed by will = executor (power to act derived from will) - If will doesn't appoint an executor, Non Contentious Probate Rules (NCPR) appoint PR -> administrator - Minor/lacking mental capacity cannot act, unwise for bankrupt to act - min. 1 (ideal 2), max 4 can apply for grant of representation (extra have reserved power until vacant spot) - Testator should obtain consent from executor (onerous on grieving spouse) - Appointment of spouse/civil partner ineffective on divorce (s18A/C Wills Act) - Mostly absolute/unrestricted power but qualified appointment for time/location/type of asset possible (must ensure all of the estate is covered by an executor here) (grant of representation issued will be similarly limited) - No doubt about who is appointed (void if unclear /ambiguous of who)

Answer 11

I APPOINT ... and .... (hereinafter my trustees) jointly to be the executors and trustees of my will but if unable/unwilling I appoint ... to fill any vacancy

Answer 12

- at least 2 trustees, if trust arises - can be both executor and trustee - often family member + legal professional

Answer 13

I appoint the partners ... - partnership doesn't have separate legal identity so instead all partners at the date of death appointed - number of partners that can act can be limited (can express preference for specific partner but don't personally appoint - may no longer work there) - firm may change its name/merge/incorporate/LLP so use 'partners' for flexibility

Answer 14

- Lots of law firms are LLPs (have legal capacity to apply for grant of representation + can be appointed executor - Trust Corp- specific trustee + PR authority (law firms/banks may have their own with separate legal identity) can be appointed executor - LLP/Trust Corp can be appointed sole executor/trustee

Answer 15

- Only professional executors/trustees may charge £ (s29 TA 2000) but some restrictions so professional executors/trustees (LLP/trust corp partners) include express charging power added to appointment clause "Any Professional Trustee is entitled to charge and be paid reasonable remuneration" - Receiving payment under s29 TA/ express charging clause not a breach of fiduciary duty (profit/self-dealing/no conflict not applicable)

Answer 16

I APPOINT ... to be guardians of any of my children not yet 18 on my death - any testator with parental responsibility may appoint a legal guardian for their infant children by will (s5 Children Act 1989) - appointment by 1 parent doesn't take effect until after death of surviving parent - consent from guardian should be obtained (not required to accept appointment) - consider financial provision for guardian (legacy if they are appointed) - consider joint guardians + if they'll work together effectively

Answer 17

Executor: administer the estate then done Trustee: manage trust (continues for as long as trust exists) If will includes express trust/ trust arises where executors can't administer it all (contingent interests)- will is trust deed consider administrative powers needed (from statute/common law/express in will) If no express in will/intestate- statutory and common law apply Express powers override default powers- can restrict/expand them, create new powers Professionally drafted wills include express administrative provisions at the end after dispositive clauses (follow Society of Trusts + Estates Practitioners STEP provisions(

Answer 18

Attestation clause: circumstances in which will was signed presence of 2 or more witness who attest execution - s9 Wills Act testator commonly signs at end of will, attestation clause last to confirm their intention Valid without this

Answer 19

I GIVE... - particular item owned by the deceased at the date of death (distinguished from other, similar property) - identifiable or fails for certainty - if testator doesn't own it at death -> gift adeems -> beneficiary doesn't get it - alternative item/cash equivalent can taken if gift of original item not possible -'or any such ...'

Answer 20

All my ... to be divided ... - Must be identifiable or fails for certainty - for one/many- specify division, time frame, how failure resolved (executors decide)

Answer 21

- Chattels (personal possessions) included in their succession estate, use specific clause so they don't form general residue - Statutory def includes vehicles/modes of transport/pets but not money/business items/solely investment items (amend clause to include/exclude) - Avoid conflict w/ collections clause -> chattels after in will, and only covers items not already given away

Answer 22

- Joint tenants -> survivorship (sever if needed) - Tenants in common -> included in succession estate, passes per will/intestacy (check rights of other co-owner) - if T doesn't mind if sold/wants sole beneficiary of residuary to receive it - no clause needed - if not-> identifiable property (full address + registered title number) and alternative if no longer owned by T on death (specific alternative property given?)main residence on death?) - Residence Nil Rate Band - advice on repayment of mortgage/secured charge - who is liable - if leaving property on trust - who has right to occupy/pay rent/veto sale/pay for upkeep - if left to more than one person, clarify terms of their joint ownership

Answer 23

- gift of different property (doesn't fill as PR buys the specified property if not part of estate at death- check with T) - most pecuniary legacies are general - I give £1000 to...

Answer 24

- often pecuniary - paid out of specified sum - will not fail for insufficient funds in specified account -> if it no longer exists/is inadequate -> B entitled to rest of fund + balance as general legacy

Answer 25

- money - demonstrative or general - written in numbers and words

Answer 26

- gift of all of T's property in succession estate not already disposed of - substitution clause- any primary gift that fails -> residuary - partial intestacy if not drafted well (equally rather than proportions, express substitution clauses, ultimate gift over- disaster clause) - given directly to beneficiaries or form trust - trust where : life interest/discretionary trust/ more than 1 person/contingent or minor interests - clause should cover declaration of trust + terms of trust - note funeral/testamentary expenses/ debts paid first

Answer 27

- property - collections contrary intention - 'my' -> date of execution of will (receive nothing if no longer owned at death + no substitution)

Answer 28

Date of execution if grandchildren etc. state expressly when that's determined (execution/death/all including those not born) if not class closing rule applies, class closes when 1st beneficiary obtains a vested interest later codicil updates will - people at time of that execution

Answer 29

Inheritance tax: gift generally made free of IHT (IHT payable from residue as testamentary expense Beneficiaries bear cost of delivery of item of property to them/ expenses incurred since death in preserving/upkeep unless gift 'free of' expenses/transfer AEA- asset charged bears liability for payment - beneficiary must pay secured debt/charge unless otherwise stated (general debt paid out of residue- must be specific, not just general direction to pay but evidence can prove intention)- check mortgage protection policy (proceeds to pay mortgage or to estate or directly to lender/surviving joint owner)

Answer 30

Beneficiary must merely survive testator (no more) to get gift (if not gift lapses) Commorientes - die at same time, eldest died first but IHT sees as simultaneous deaths- taxed separately Quick succession relief from double taxation Express survivorship clause- must survive by specified period of time to get gift (28/30). If 1 spouse has few assets, couple's combined above nil rate band -> equalise assets if survivorship clause to minimise IHT

Answer 31

Individual (named) or class? Vested or contingent? What if beneficiary pre-deceases?

Answer 32

Children/grandchildren Each member entitled to inherit General class closing rule: class closes (no one born subsequently can qualify) when one member's possession vests If no contingency on vesting (reaching age) - class closes on date of death as long as one person satisfies condition (vestable in one person) Make express to avoid confusion (esp for those born after will)

Answer 33

Vests if given outright/absolutely (no conditions) Not about age (can give to minor absolutely) but held on trust until 18 (if M dies before 18 but after testator, it goes to M's estate.) 16/17- if express provision can take money not on trust

Answer 34

Vests when condition satisfied -> if not gift fails Commonly used for: - testator's issue - residuary estate tax implications of vesting at age after 18

Answer 35

gift fails if beneficiary pre-deceases testator pecuniary gift lapses -> residuary estate residuary estate gift lapses -> full/partial intestacy

Answer 36

Given in attempt of gift lapsing (note another beneficiary- children, grandchildren ) Often for residuary estate to prevent intestacy if no express substitution clause -> s33 Wills act

Answer 37

If no express substitution, applies to prevent gift lapsing where: a) will has a gift to their issue b) intended B dies before T, leaving issue and c) issue of the intended B are living at testator's death (given to them + shared equally unless contrary intention shown) Also relates to class gifts to children/grandchildren but not to other gifts Confusing when s33 applies but original gift contingent (does same contingency apply?) s33 can be excluded by wording of will specifically

Answer 38

include: - full name and address and registered number of charity - registered charity status (IHT implications) - express provision made for changing its name/joining another org/ceasing to exist/winding up - who can give valid receipt (treasurer) without this all members/potential beneficiaries need to give receipt (impractical) General charitable purposes = Cypres - gift given to another charity with a different purpose

Answer 39

- England has testamentary freedom - Close relatives have no legal right to inherit but can make application to the court using IPFDA - Court can make provision if reasonable financial provision hasn't been made Must be : 1. In jurisdiction of IPFDA 2. In recognised category of eligible applicants 3. Make claim in prescribed time limit

Answer 40

Only applies where deceased died domiciled in England and Wales. Can only have 1 domicile at a time. Domicile of origin: at birth, father's if married, mother's if not Domicile of dependency: parent changes domicile, domicile of children under 16 changes Domicile of choice: sever all ties with origin w/ permanent intention

Answer 41

- spouse/civil partner - former spouse/civil partner who hasn't remarried/ another CP - Cohabited with deceased as spouses/civil partners for 2 years prior to death - Child (inc. adopted) - person treated by deceased as child of family (inc. step-child) - any person £ maintained wholly/partly by deceased immediately before death (substantial contribution towards reasonable needs outside of commercial)

Answer 42

6 months after date of grant of representation made (can be done before grant issues) Check online search or standing search form + fee at Probate Registry (renewable) can be extended if applicant shows circs around delay, if negotiations started in time limit, if estate already distributed before claim, refusal would leave them without recourse, if they have an arguable case fit for trial

Answer 43

High Court or County Court High Court Family division: spouse/civil partner/cohabitee and no complex issues Chancery division: other

Answer 44

Out of net estate including: - normal succession estate - any property deceased had power of appointment for but hasn't exercised - property deceased nominated by statutory nomination/gave by DMC (minus IHT paid by donee) - deceased's severable share of joint tenancy if ordered by court - any other property disposed by deceased but made available by court's anti-avoidance powers

Answer 45

- deceased's will did not make reasonable financial provision for the applicant and/or - distribution of the deceased's estate under intestacy rules fails to make reasonable financial provision for applicant Reasonable: consider competing interests of applicant and intended beneficiaries and original wishes of testator

Answer 46

Order deemed to be effective from date of death ( read back for tax) - periodical payments - lump sum - transfer of property - settlement of property - acquisition of property for transfer - variation of marriage /civil partnership settlement - variation of trusts on which deceased's estate held (will/intestacy)

Answer 47

1. Did the deceased fail to make reasonable financial provision of the applicant? 2. If so, what award should court make?

Answer 48

Objective- statutory criteria (not moral) Spousal standard: financial provision as reasonable regardless of whether it is required for maintenance All other claimants (maintenance standard): financial provision as reasonable for applicant's maintenance (no statutory definition but not necessarily their actual standard of living) Spousal standard can be extended where all 3: 1. former spouse of decease who hasn't remarried or spouse judicially separated from deceased 2. divorce/dissolution/nullity/judicial separation within 12 months of death 3. no order for financial provision made/refused in ancillary procceedings (financial orders made by court on divorce etc.)

Answer 49

apply to all applicants and each factor has equal weight a) financial resources/needs of applicant b) financial resources/needs of other applicants c) financial resources/needs of any beneficiaries of the estate d) obligations+ responsibilities deceased had towards Bs + applicants e) size and nature of net estate f) physical/mental disability of any applicant/beneficiary g) any other court considers relevant (conduct of applicant/B) Financial resources + needs includes those likely in foreseeable future

Answer 50

a) applicant's age/duration of marriage b) contribution of applicant to welfare of deceased's family (home/caring) c) provision applicant expected to receive on divorce if couple ended relationship on date of death (not if judicially separated) a + b= former spouses too

Answer 51

a) age of applicant + length of cohabitation b) contribution of applicant to welfare of deceased's family (home/caring)

Answer 52

Must consider manner they expected to be educated/trained If not child but treated as such must consider: a) on what basis D maintained, length + extent of contribution b) if D has assumed responsibility for maintenance c) in assuming responsibility, did so knowing applicant wasn't their child d) liability of another to maintain applicant

Answer 53

- substantial £ contribution towards reasonable needs of person outside of commercial a) length of time + basis + extent of maintenance b) if, and to what extent, D assumed responsibility of maintenance of applicant

Answer 54

1. Quantum (amount received) 2. Form of award largely based on financial evidence assess applicant's current + future assets and liabilities and s3 factors (particular needs) Not always what they would've received on divorce, no presumption of clean break/50%, outright interest in estate or life interest (continue living in family home/ D has children from other relationship to leave house to) Can be subject to will/trust but argue its not reasonable financial provision (discretionary doesn't guarantee anything, life interest depends on level of income produced vs needs)

Answer 55

- paid on estate of deceased person (40%) - applies to UK assets of UK resident taxpayers - applies to worldwide assets of UK-domiciled taxpayers - scope of IHT is broad to prevent avoidance by reducing value of estate in lifetime

Answer 56

Nil rate - 0% (£325k) Lifetime rate- 20% Death rate - 40%

Answer 57

1. PET- Potentially exempt transfers - lifetime transfers of value exempt unless transferor dies within 7 years - chargeable at death rate (40%) 2. LCT- Lifetime chargeable transfers - lifetime transfers of value which are immediately chargeable to IHT at lifetime rate (20%) - reassessed if transferor dies within 7 years 3. Death - deemed transfer of all assets owned on death (IHT chargeable on this transfer)

Answer 58

Non-exempt transfer of value made by individual Disposition resulting in immediate decrease in value of individual's estate Gifts/ transactions at undervalue (difference in £ is a gift) - anything with monetary value Value depends on trigger event: Lifetime- loss in value to donor Death - market value of items in the estate on date of death

Answer 59

Individuals have basic nil rate band (NRB) of £325k of chargeable transfer value on which no tax is due Surviving spouse/civil partner can inherit the unused portion of basic NRB - transferable nil rate band (TNRB) Additional nil rate band (£175k) of individual dead on/after 6 April 2017 if leaving family home to direct descendant - residence nil rate band (RNRB) Surviving spouse can inherit unused portion of RNRB

Answer 60

- prevents giving away shortly before death - transfer not chargeable at point it is made - transfer becomes fully exempt if transferor survives seven years from date of PET - if transferor dies within 7 years, PET fails -> chargeable transfer -> IHT

Answer 61

All lifetime transfers of value made by person into a trust on/after 22 March 2006 - LCT chargeable when made - IHT lifetime rate of 20% - if transferor dies within 7 years, LCT reassessed to death rate of 40% using NRB at date of death

Answer 62

Deemed transfer of all assets -> IHT Property valued at price it might reasonably be expected to fetch if sold on open market immediately before death. Taxable death estate not the same as the succession estate 40% of value above available NRB PETs + LCTs made in 7 years prior reassessed

Answer 63

- prevents individuals reducing/avoiding IHT liability by making serial dispositions HMRC considers the Cumulative total = total chargeable value of all chargeable transfers made in the previous 7 years Cumulative total reduces NRB available for the transfer under consideration- Available NRB = Full NRB - Cumulative total

Answer 64

Gifts to certain individuals/entities exempt - completely free of IHT + do not use up NRB

Answer 65

Gifts of some assets benefit from relief- where conditions met, amount of IHT payable is reduced (up to 100%)

Answer 66

1. Calculate cumulative total 2. Identify value transferred 3. Apply exemptions and reliefs 4. Apply basic NRB and calculate tax If calculated after death: 5. Apply taper relief 6. Give credit for tax paid in lifetime

Answer 67

1. Calculate cumulative total 2. Identify assets included in taxable estate 3. Value the taxable estate 4. Deduct debts/expenses 5. Apply exemptions and reliefs 6. Apply RNRB (residence) 7. Apply basic NRB and calculate tax

Answer 68

PRs of surviving spouse claim (within 2 years of the end of the month of death/ 3 months of PR first acting if later) an increase in survivor's NRB equal to the unused percentage of first spouse's NRB % of NRB sum on date survivor dies - benefits from increased thresholds over time if NRB amount unchanged then unused amount and % the same only available after surviving spouse dies (not for their chargeable lifetime transfers) HMRC can extend deadline If PRs failed to do in time, anyone liable to pay IHT can make the claim after dealing for PRs to make claim

Answer 69

Claim TNRB in respect of all of them, subject to a cap of 100% of a full nil rate band being transferred (£325k-> never more than £650k ) Individuals entitled to claim TNRB from previous marriage/CP can pass this on to any subsequent spouse they have (capped to transfer of 100% of full NRB) Separate claim for each TRNB- even if only 1 needed PRs of surviving spouse can make claim for any TRNB deceased spouse was entitled to on death of previous spouse (if their PRs hadn't already)

Answer 70

Finance Act 2015, fulfils all: 1. Deceased died on/after 6 April 2017 2. Death estate included qualifying residential interest (QRI) 2. QRI was closely inherited by direct descendant If part of QRI closely inherited but other part not- only the chargeable value of share closely inherited is taken into account when calculating RNRB RNRB applies to death estate as a whole

Answer 71

Tapered withdrawal of RNRB for estates with net value (after debts, before exemptions + reliefs) of over £2million - reduction of RNRB is £1 for every £2 above £2million No RNRB available at all for net estates of £2.35million or more (or £2.7million where a full transferred RNRB applies.

Answer 72

Residential property interest part of the deceased estate right before death Where more than 1 property, PR nominates one as QRI - interest in dwelling house which was deceased's residence at some point including property they didn't live in but intended to at the future - dwelling includes garden/grounds - doesn't include rental investment property which the deceased didn't live in

Answer 73

Beneficiary closely inherits QRI if received by - gift under will (specific legacy of home or taking whole/part of residue including it) - intestacy - survivorship Unless exception applies, B with contingent interest doesn't closely inherit - not receiving absolute interest

Answer 74

Direct descendants: 1) children, grandchildren, great... etc., adopted, step (if parents married), foster, guardianship 2) spouse/CP of children, grandchildren, etc. 3) widow/surviving CP of 1 who has pre-deceased the deceased as long as survivor doesn't remarry before deceased dies Does not include: deceased's siblings, parents, nieces, nephews

Answer 75

where first of the couple to die - did not own a QRI - did not qualify for RNRB as they left their GRI to non-lineal descendant (such as surviving spouse) Surviving spouse can only use if leaving QRI to direct descendant - doesn't have to be the same house - can be increased by up to 100% (£175k +175k = £350k) tapered withdrawal - amount of RNRB reduced by £1 for every £2 over £2m value of property no RNRB for estates over £2.7mill

Answer 76

Full RNRB even if deceased didn't have QRI on death (or QRI valued less than RNRB) downsizing addition - deceased gave away QRI/downsized to less valuable QRI on/after July 2015 (lost full RNRB) - former home would've been QRI if retained - direct descendant inherits the replacement QRI Amount of addition = amount of RNRB loss because former QR no longer owned/ new QRI less valuable PR claims within 2 years of end of death month- details of lifetime gift/sale needed only relevant if no QRI in deceased's estate/ value of new QRI after downsizing less than maximum RNRB Never more than maximum available Not relevant if no loss of RNRB as new QRI value os same/more QRI not left to direct descendant

Answer 77

Basic NRB £325k RNRB- £175k Spouse's unused NRB- £325k Spouse's unused RNRB- £175k No IHT payable on death RNRB covers whole estate not just residence

Answer 78

1. tax due on immediately chargeable lifetime transfer - LCTs only (20%) 2. tax due as a result of transferor dying within 7 years of making a lifetime transfer (LCTs and failed PETs) - reassessed to 40% using NRB at date of death

Answer 79

How much of NRB is available All chargeable transfer made in 7 years before death If failed PET in those 7 years, calculate cumulative total for that transfer by looking back 7 years before for LCTs (14 years before death)

Answer 80

Disposition immediately decreasing value of individual's estate Lifetime transfers- reference to loss in value to donor at date of transfer - cash, same amount, other- value received by donee

Answer 81

Spouse, charity, family maintenance, annual, marriage exemption Small gifts allowance Normal expenditure from income Business property, agricultural property, taper relief Annual exemption always for lifetime transfers - £3k per tax year not chargeable (can use the previous year's too- £6k)

Answer 82

1. Establish NRB value £325k, NRB for LCT is NRB at date of transfer RNRB never for lifetime transfers NRB to failed PET/re-assessed LCT is NRB at death 2. Reduce total NRB by cumulative total 3. Apply 0% rate to remaining taxable estate up to total NRB 4. Apply relevant rate to the rest - IHT due LCT - last step- 20% rate

Answer 83

Taper relief: reduction in amount of IHT due dependent on date of transfer - apply IHT on reduced value no taper- 0-3 years before death minus 20% - 3-4 years before death minus 40% - 4-5 years before death minus 60% 5-6 years before death minus 80% 6- 7 years before death Credit for tax paid in lifetime - when LCTs reassessed- deduct previous IHT paid after taper relief applied - pay balance to HMRC- if nil, none left to pay, if negative, no refund for lifetime payments

Answer 84

Total of all chargeable transfers in 7 years prior to death

Answer 85

Different to succession estate Includes all property deceased was beneficially entitled to at date of date - property globally where UK-domiciles - all jointly owned property (tenants in common share and deemed joint owner share tax liable) - property subject to a reservation - gives away but reserves a benefit (legal ownership of holiday home given away) (GROB), avoid by ensuring they don't get benefit/pay when they do - DMCs - statutory nominations (Friendly/Industrial/Provident Societies - max £5k each- money goes straight to nominee not in distribution estate but is part of taxable estate) - some interests in possession trusts (created before 22 March 2006) (e.g. life tenant- capital taxable ) After 22 March 2006- Life interest trust created by will - immediate post death interest, capital value included in taxable estate if new intervivos trust made in lifetime of settlor- on/after 22 March 2006- not included in taxable estate Everything not specifically excluded is in the taxable estate + - discretionary pension scheme payments (except those payable by right to deceased's estate) - insurance policies written in trust for 3rd party excluded - remainder man of life interest trust

Answer 86

Generally- market value at the date of death Quoted shares: - stock exchange prices on date of death - lower of 2, add 1/4 of difference between the 2 Related property: - if assets owned by spouses worth more when valued together (form a set) - proportionate share's value of total Joint property: - land co-owned (JT or TiC), value of deceased share is reduced (10%) to reflect difficulty of selling share of property- not where married as related property , not chattels

Answer 87

1. Deceased debts/liabilities due at the date of death - money deceased owed 2. Post-death debts/expenses- reasonable funeral expenses/tombstone Other post-death payable from estate but can't be used to reduce value of IHT liable estate (legal fees for probate work)

Answer 88

Spouse exemption Charity exemption Business Property relief Agricultural Property relief

Answer 89

1. Establish RNRB available (including any transferred) 2. Apply rate of 0% to this amount if any remains- 7.

Answer 90

1. Establish value of NRB and any transferred NRB 2. Reduce total NRB by value of cumulative total 3. Apply rate of 0% to this amount 4. Apply death rate of 40% to any left over

Answer 91

Annual exemption Family maintenance exemption Small gifts exemption Marriage exemption Normal expenditure out of income exemption Taper relief

Answer 92

Woodlands relief Quick succession relief

Answer 93

Spouse exemption Charity exemption Political Party exemption Exemptions for gifts to employee benefit trusts/housing associations/national purposes or heritage maintenance Business property relief Agricultural property relief

Answer 94

Gifts between spouses during life/following death are completely exempt provided both parties are domiciled in the UK. No upper limit applies to will/intestacy/survivorship Unmarried couples cannot claim- no common law spouse Conditional gifts too if the condition satisfied within a year after death (e.g. 28 day survivorship clause) Also applies to life interest trusts where spouse is life tenant (right to income) but not if remainder man (capital on end of life interest subject to IHT)

Answer 95

All transfers to registered charities in life/following death are exempt - no limit, as long as gift exclusively used for purposes of the charity Can be conditional as long as condition satisfied within a year after death Gift must be immediate/absolute - not remainder man Even if gift confirmed to be made for charitable purposes, IHT only applies if charitable body registered in UK (eng, W, NI, Scot) Where leaving 10% of estate to charity - 36% not 40% death rate

Answer 96

Established political parties - exempt gifts - have 2 MPs elected or - at least 1 MP elected and 150k votes to candidates of the party

Answer 97

If made to housing association/registered social landlord

Answer 98

designated national purposes listed in schedule- museums and galleries for public benefit

Answer 99

maintain historic buildings/ land of scenic/scientific/historic interest- gifts have no IHT and fund does pay IHT

Answer 100

tax-efficient way of paying employees- complex anti-avoidance rules apply now must satisfy strict conditions

Answer 101

Apply NRB/RNRB to rest of estate

Answer 102

Reduces IHT on qualifying business property (can reduce by 100%) Qualifying business assets must have been owned for a qualifying period of time - unquoted shares (all private company ltd shares - regardless of size/value)- 100% relief - quoted shares (listed stock exchange)- 50% relief if controlling interest - business/interest in a business - sole trader/partnership - 100% relief - assets owned by taxpayer but used for business - land/buildings/machinery by business controlled by taxpayer/they were partner in- 50% relief does not include investment assets - if business mainly deals in securities/stocks/shares/land/building or making/holding investment- rental properties, property management companies , caravan sites Business assets must have been held continuously for at least 2 years immediately prior to transfer - doesn't have to be same type of business throughout but must have been business - if qualifying assets sold and replaced with new qualifying assets - counts as continuous period (starts with time first assets acquired) - inheriting business assets following someone's death, deemed to have acquired on date of death - surviving spouse inherits the period of ownership - when acquiring qualifying assets on death

Answer 103

Where PET/LCT of qualifying business assets made and reassessed to IHT following death within 7 years of transfer, BPR only available for lifetime transfer if qualifying/replacement qualifying property: - all still owned by transferee - qualified for BPR when transferor dies (or transferee dies if sooner) - no minimum 2 year requirement for transferee If half sold by transferee, can only claim BPR for portion remaining from transferor

Answer 104

calculate using agricultural value of land- not same as market value can be up to 100% - agricultural land and business (purpose of agricultural activity) - farmhouses/cottages - if character appropriate to associate land and occupied for purpose of agriculture (not just domestic) consider if size/value proportionate to land Qualifying property must have been -occupied by transferor for 2 full years prior to death - owned/occupied by them/another for agricultural purposes 7 years immediately before transfer if sold + replaced with new qualifying - continuous period, if inherited on death, acquired on date of death, surviving spouse inherits period of ownership (from when spouse first acquired the property) 100% relief if owner/occupier (or vacant possession in 12 months) or property let on tenancy on/after 1st Sept 1995 for agricultural purposes 50% rare - tenancies before Sept 1995

Answer 105

PET or LCT of qualifying agricultural property and transfer assessed to IHT at death within 7 years. APR only available if qualifying property/replacement qualifying property: - is owned by transferee - qualified for APR on transferor death (or transferee death if earlier) - no minimum 2 year ownership for transferee If transferee only owns a proportion of the transfer, APR can be claimed for the retained share

Answer 106

APR given in priority to BPR where both apply Cannot claim BPR on business asset if the asset also qualifies for APR Agricultural buildings - both - APR priority Livestock not in definition of agricultural property, so BPR Farmhouses/cottages - unlikely to be BPR so APR

Answer 107

Only available when IHT due (over NRB) Gifts of woodlands - if bought by deceased, owned by them for at least 5 years - if inherited by deceased, no period of ownership required Deferral of IHT- executors elect to exclude value of woodland (trees/timber not land itself) from death estate Tax is deferred until the timber, not the land is sold, given away As deferral, BPR or APR if applicable may be better (reduction) BPR- commercial fishing/timber harvesting APR- agricultural/ancillary land

Answer 108

Only applicable when IHT due (over NRB) Where same asset subject to multiple IHT in quick succession - death estate includes assets received by gift/inheritance, - in the 5 years before their death and - those assets subject to IHT charge when transferred to the deceased Relevant IHT must have been payable on original transfer and subsequent death - tax paid previously is credited against later IHT charge If death occurs within 1 year of previous IHT charge - relief measured by 100% amount of IHT paid previously - reduces each year - 4-5 years after original charge - 20% of initial IHT charge considered

Answer 109

PRs of an estate have a duty to - deliver an account to HMRC regarding the deceased's estate - Pay any IHT due

Answer 110

Specifies all the property comprising the deceased's taxable estate immediately before death + the value of each item at the date of death - the exemptions and reliefs that apply Deadline for submitting account is 12 months from end of month of death Deadline for paying IHT due- 6 months from end of the month of death, after this, interest owed on unpaid tax PRs will submit + pay ASAP as grant will not be issued until account given + IHT paid (+ avoid interest) Grant needed to carry out administration.

Answer 111

HMRC add deceased's taxable assets and subtract debts and apply exemptions/reliefs / transferred NRB/RNRB (spouse/charity/BPR/APR) 0% NRB up to £325k 40% on any above

Answer 112

10 equal annual instalments for certain assets 1st due by usual deadline (6 months), remaining due on each subsequent anniversary date, with interest charged on any IHT after initial deadline PRs must pay tax when IHT400 submitted (to get grant) regardless of 6 month deadline. But if paying in instalments, only pay instalments already due on submission of IHT400 (before 6 months, only pay non-instalment IHT owed). if instalment unpaid after grant issued, PRs should pay by deadline to avoid interest.

Answer 113

- Land and buildings - Company shares/securities giving deceased control - some unquoted company shares that didn't give control where: payment cannot be made without undue hardship or tax for shares is 20% or more of total IHT due by PRs or value of shares over £20k and shareholding is 10% nominal value of all company shares - farms/interest in farming businesses - business/ interest in a business - timber

Answer 114

- purpose is to prevent undue hardship if asset with instalment IHT attached sold, instalment option ceases and outstanding IHT on that property is due immediately (use sale proceeds)

Answer 115

- time consuming + complicated with supplemental schedules - date of death relevant unless loss relief - value post death lost- partial refund of IHT - if excepted, provide info for grant of representation - sent to Probate Registry at HMRC - low value excepted estate - exempt excepted estate Both apply to those domiciled in the UK

Answer 116

where no IHT payable because the gross value of the estate is below the NRB ( any residence NRB not considered but transferred NRB is ) Gross value = total taxable estate + certain specified transfers (made in 7 years before death- cash, chattels, shares, land) + specified exempt transfers (spouses/charities)

Answer 117

gross value of the estate is £3 million or less but no IHT is payable because after debts deducted and spouse/charity exemption applies, net value of estate is below the NRB (debts alone can't bring it below NRB) No other reliefs/exemptions apart from spouse/charity taken into account here (BPR/APR etc.)

Answer 118

- deceased made gift with reservation of benefit subsisting at death (or reservation ended in 7 years prior to death and transfer not exempt) - estate has more than 1 trust interest or 1 trust interest worth over £250k (+ not passed to spouse) - foreign assets worth over £100k (don't consider value of foreign assets in NRB) - value of specified transfers is over £100k - claim for RNRB being made- IHT435/6 + IHT400 needed

Answer 119

Post death changes to estate only noted if corrective - - additional assets/liabilities discovered after IHT400 - corrections to value of assets/liabilities - changes to exemptions/reliefs applied (where not claimed/due) - variation of original beneficiary entitlements which affect IHT liability PRs must make adjustment to calculation - pay additional due on submitting C4/ claim refund

Answer 120

Can't obtain grant without paying IHT but can't access deceased's assets without grant- pay with - direct payment scheme - from deceased's accounts prior to grant issued - IHT 423 , banks directed by HMRC - borrowing - from a beneficiary (funds outside succession estate/grant not required- joint bank account) or from a bank (commercial rates of interest)

Answer 121

legal process for managing distribution of their estate: paying debts/taxes/estate expenses/beneficiaries

Answer 122

Permitted by law to administer deceased's estate Appointed by will = executors (derive power from will, may act from date of death- grant confirms this authority- provides proof for releasing funds/assets- LR) Appointed by statute = administrators (derive power from grant, no authority until grant issued) can be beneficiary fiduciary duties

Answer 123

Court order confirming the authority of PRs to act (collect deceased's assets + distribute) + allowing them to do so Confirms validity of deceased's will or intestacy Power of grant limited to succession estate (can advise on others - JT property, but no legal authority to deal with those assets)

Answer 124

PR not automatically trustee, but roles similar - both fiduciary (lots of duties of TA 1925/2000 apply to PRs) Continuing trusts created -> property transferred to trustees + date recorded (even if same people) PR is trustee where: - will expressly appoint executors to be trustees of any trust arising - intestacy - PRs hold estate on trust with a power to sell - statutory trust under intestacy - PRs are trustees on behalf of minor beneficiaries

Answer 125

1. Instructed by PRs - advice/ to carry out administration where difficult/lengthy - client is PR not beneficiaries - act on PR's instructions, do CDD etc. - Legal advice costs paid from estate assets not PR's personal funds - PR signs docs but prepared/drafted by solicitors 2. Appointed as executors under deceased's will - Professional PR- duties owed to estate's creditors + beneficiaries - charge estate for services (give testator info on costs to make informed decision) - for complex estates/ family disputes - can act in conjunction with family - whole firm or specific partner 3. Instructed to act on behalf of party to a contentious probate matter - terms of will/ will validity challenged - IPFDA claim

Answer 126

- Grant of probate - Grant of letters of administration (with will) - Grant of letters of administration

Answer 127

- deceased left a valid will - will appoints executors - at least one of the executors appointed is going to act (grant issued in their name) Required even if will doesn't dispose of any/all of deceased's property If will limits executors power to specific assets/jurisdiction/time, grant will too Named executor can formally appoint someone to act on their behalf under a power of attorney

Answer 128

- deceased left valid will - but the will appoints no executors willing/able to act Even if the will fails to dispose all of the estate Administrators appointed under Non- Contentious Probate Rules (NCPR) - Rule 20, priority order of those entitled to apply for grant

Answer 129

- deceased died without valid will (intestate) didn't make will/invalid/revoked will they had made Administrators appointed under NCPR Rule 22, priority order of those entitled to apply for grant

Answer 130

- Assets distributed under Administration of Estates (Small Payments Act) 1965 Upper limit of £5k per asset- if more, grant needed for whole sum Permissible payments but don't compel- most banks have policies on how much to release without seeing grant (around £15k) Evidential requirements for closing account- death cert/will/intestacy + PR undertaking of right to administer + indemnity to bank in case of making to wrong person - National savings (Bank accts, saving certs, premium bonds) - Friendly/Industrial/Provident Society deposits - Arrears of salary/wages - Pensions of deceased police/fire/air force/army - Building society accounts - Personal household possession Title passes by delivery, proof of ownership not required for sale (except cars- reg docs needed) Jointly owned with deceased- PR needs consent from joint owner before sale Check whether specifically gifted in will - Cash No grant needed for any cash

Answer 131

PRs need death certificate + any other asset holder documentation - Joint tenancy owned property - survivorship, LR/bank transfers title - DMCs - deceased transferred ownership/control to B in their lifetime - Life policies written in trust/ discretionary pension lump sum nominated for 3rd party/ other nominates assets- payable to named B with death certificate - Assets held in a trust where deceased had interest- notify trustees, trust deed determines what happens (if anything) on death of a B

Answer 132

Advantages + releases money for Bs without waiting for grant or completion of administration + source of funds to meet expenses (IHT) + small estate w/ only assets without a grant -> cost-effective administration Unless an estate ONLY has assets without a grant required, PRs need a grant of representation -> easier then to administer whole estate referring to grant rather than try do some without (though possible)

Answer 133

- Death certificate/ Funeral - Secure estate assets - Locate will/codicil - Basis of distribution + identify beneficiaries - Schedule of assets + lifetime transfers No order, done simultaneously Not all done by PRs but relatives

Answer 134

PRs may register death (have duty to deal with body) but often done by family, who give PRs the official copy of death certificate (useful for solicitor too) Death must be registered before funeral PRs send official copies to send to institutions where D had assets - banks/insurance Gov orgs notified of death via centralised service when registering death - if not Family often do funeral - moral obligation to follow funeral wishes in will Funeral cost = post-death administration expense payable from estate funds (considered when calculating IHT) D may have insurance to pay for funeral/pre-paid plan

Answer 135

PRs have a duty to preserve the value of the estate - personally liable to account for loss/damage PRs should ensure valuable items/documents kept safe Property left vacant -> secured + notify insurers Vehicle left unattended + off road -> notify insurers + DVLA PRs consider security of digital assets + possible closure of social media accts.

Answer 136

PRs obtain original will + codicils at start of administration process- a copy won't get them a grant unless Probate Registry gives special permission PRs satisfy themselves that will is valid Check for drafting errors/missing clauses- obtain docs incorporated into will Solicitor ensures codicil makes sense with will - notify PRs of any issues so can be quickly rectified If intestate apparent - PRs make enquiries - revoked or lost? if valid will lost, try to reconstruct it Optional to register will on a national wills register (private company run)- search there Before grant obtained- only appointed executors entitled to see it, after grant - will is a public document

Answer 137

Will + codicils read in full to identify beneficiaries Intestacy rules determine who benefits Inform those entitled with realistic timescale for distribution - administration takes months (longer than Bs may expect)

Answer 138

PRs compile an accurate list to : - identify + value estate assets - identify any creditors (PRs owe them duty) - calculate IHT due (reference to date of death values) - is estate solvent? - estimate what is each beneficiary entitled to Cannot obtain grant/calculate IHT without this Ask family/ search hime for evidence of what they owned- often discover new assets later in administration Once done, contact orgs to notify them of death + give death cert -> request confirmation of value of asset at date of death -> request instruction of how to close acct/transfer to PRs

Answer 139

- Bank accts - PRs request summary of account balance on date of death + accrued interest from bank - Joint accts- PRs establish proportion owned by D (50/50 presumed but enquire- parent may own all, even if child on acct.) - Low value chattels - estimate value, probate value (likely sale price) lower than replacement cost (insurance purposes) - Single items worth over £500 or unusual items- formal probate valuation obtained (costs payable from estate funds) - Quoted shares - take lower of 2 stock exchange daily list prices at death date, add 1/4 of difference in their value - Private company shares/partnership interests/sole trader business - specialist valuer - shares/investments held through financial services company - broker gives list of holdings + death date values - Land - estate agent valuation (more than 1 -> take average, avoid HMRC querying value for tax purposes) - Land jointly held- establish deceased's share -> view LR copies to establish JT or TiC + co-owners identity

Answer 140

PRs collect details of debts/liabilities owed by D at death -> continue against the estate after death so PRs must pay - credit card statements/loan docs - notify utility/phone companies of death -> provide summary of amount due/refund at date of death Take steps to locate possible unknown creditors Value of death reduces IHT taxable estate unless : - D borrowed money to finance purchase of IHT excluded asset - D's debt never actually repaid from estate funds

Answer 141

Schedule of those made 7 years before death for IHT/tax charge PRs must ask : - nature of transfer - date it was made - amount/value - donee's identity

Answer 142

Grant of probate Authority derives from the will all named in will as executors entitled to take grant of probate (can appoint someone else to act on their behalf- power of attorney) If power limited by will to specific assets/jurisdiction/time- reflected in grant's authority

Answer 143

Appointed at the issue of the grant, authority to act derives from the grant Grant of letters of administration (with or without will) NCPR 22 - must have beneficial entitlement

Answer 144

Executor named in will can't be a PR if - pre-deceased testator (or die before taking out grant)- will may appoint substitute expressly - minor cannot be PR, but appointment by will is valid, reserve the power until 18 and then can apply if administration incomplete - lack capacity (can have reserved power) - testator's former spouse/civil partner and dissolution took place after the will was made - treated as pre-deceased (cannot be appointed) unless expressly overrides s18A/C

Answer 145

Only 1 required Practically - common for 2 If more than 1 appointed by not all apply for grant - must explain to probate registry why not all those named are applying (death certs etc.) Max 4 people named on grant (but testator can appoint as many as they like - decide on the 4 themselves, power reserved to the rest (apply later if vacancy + admin incomplete-> grant of double probate) or can name substitute

Answer 146

At least 1 PR remains - they continue or if number below any minimum, appoint more No PR remains: depends on estate : - chain of representation s7AEA - if last surviving executor (with grant) dies having appointed executor of their own estate- that executor takes out grant of probate for this and then auto becomes executor of OG testator's estate as well -> no additional grant needed doesn't apply when administrators acting (executor dies intestate) - grants of letters of administration de bonis non issued - chain not possible : - administration incomplete + - no remaining PRs + - previous grant of representation

Answer 147

Valid will but no executors willing/able to act Even if will fails to dispose of all the estate (partial/full intestacy) Entitlement to apply for grant derives from order of priority in NCPR 20 not will: 1. executor 2. trustee of residuary estate 3. any residuary beneficiary (life or absolute) or intestacy beneficiary 4. PRs of 3 except trustee/life tenant of residue 5. any other beneficiary/creditor 6. PRs of 5 Person in category cannot apply if anyone in higher category willing/able to be administrator Those in the same category have an equal right to apply (but vested interest B preferable to contingent interest B) Applicant must explain why anyone with better right to apply isn't acting - clearing off (not other equal right)

Answer 148

No valid will- revoked, didn't make, invalid Entitlement of administrators to apply derives from NCPR 22 order of priority (broadly intestacy order) 1. Surviving spouse/CP 2. Children of D (or issue if predeceased) 3. Father + Mother of D 4. Whole blood siblings (or issue if predeceased) 5. Half-blood siblings (or issue if predeceased) 6. Grandparents 7. Whole Uncles/aunt (or issue if predeceased) 8. Half uncles/aunts (or issue if predeceased) If no one -> Crown (bona vacantia) or if not creditor/ person who doesn't have benefit but might have if estate larger may apply Cannot apply in priority to someone in higher category - equal right to apply to others in same category- clear off those with better not equal PR of any applicant who survived D but died before grant can apply - but living person in same category preferred Applicants must show nature of familial relationship + must have beneficial entitlement under the estate (or would have if the estate were larger - not intestacy where all goes to person in category above)

Answer 149

- Cannot apply for grant if lacking mental capacity -> ideally someone w/ equal/greater entitlement -> if not, Rule 35 - Minor cannot be administrator but someone can apply for grant on their behalf - application by adult with equal entitlement has priority over application on behalf of minor - application on behalf of minor where no adult with equal/greater entitlement will act or minor is only person in category with greatest entitlement or all in that category are minors - can't be if predeceased T or died before taking grant

Answer 150

1 required unless minor or life interests, then 2 required if 2 required but only 1 willing/able to act in category with best entitlement to apply, person may apply for grant with somebody from next category below Max 4 applicants

Answer 151

Unwell/too complex/impractical Options: - Renunciation - Reserving power - Appointing an attorney

Answer 152

Formally renounce right to apply for probate - sign form of renunciation Those applying for grant, submit form to probate registry, renunciation noted on grant Is final - cannot change mind without court approval - cannot renounce if intermeddled with estate- steps indicating they have accepted their appointment (obtaining/selling D's assets, forgiving debts owed to estate, paying debts) Acts of common humanity- arranging funeral/securing estate assets are not intermeddling

Answer 153

Doesn't want to act initially - apply for OG grant but wants to retain the option to apply for probate later - may reserve power Must be at least 1 other executor who does take grant (power reserved to take out same grant as this one) Can be done after intermeddling Executor with reserved power applies for grant of double probate (runs concurrently to OG grant) - only if administration not yet complete No from but executors who apply for grant must give notice of intention to executor with reserved power - this noted on grant

Answer 154

Acts on executor's behalf After grant - PR can delegate to attorney for max 12 months (can be renewed), notice given to other executors, once appointed can act on behalf of donor Before grant- executor delegates power to apply for grant - not named in will so parallel apply for letters of administration (with will) (NCPR 20) whilst other executors get grant of probate Provide power of attorney to probate registry to apply

Answer 155

someone with best right to apply under NCPR 20/22 but doesn't wish to act: 1. Renounce - final - form signed + given to probate registry - at any time before grant is issued even if intermeddled - executor who has renounced grant of probate doesn't automatically renounce right to be administrator under NCPR 20/22 so must renounce both 2. Appoint attorney After administrator appointed: PR can delegate functions to attorney for max 12 months (renewable), notice given to other administrators Before grant: delegating power to apply for grant (Rule 33 NCPR) - provide power of attorney to probate registry administrator cannot reserve power

Answer 156

Where PR entitled to act, must take formal steps to give up right to apply so administration can proceed - if they don't/ executors intermeddled but don't want to apply for grant -> citation process to obtain court directions: - require person to take grant - remove rights to apply - authorise another administrator

Answer 157

- deliver an account to HMRC of deceased's estate (IHT400) All property in taxable estate immediately before death + value of each item at date of death Exemptions/reliefs that apply noted Deadline is 12 months from end of death month - pay any IHT due Deadline is 6 months from end of death month - interest becomes payable on unpaid tax Instalment option available Both done ASAP as grant can't be obtained without it + avoid interest

Answer 158

payable in 10 equal annual instalments - 1st due 6 months from end of death month -> then annually + interest on outstanding amount, when submitting IHT400 pay due instalment Land/buildings, shares/securities giving D control, unquotes shares of no control but undue hardship/ 20%+ of IHT due, 10% of all company shares/more than £20k, farms/interest in farm, business/business interest, timber if subsequently sold - instalment ceases, all IHT due

Answer 159

1. low value excepted estate - gross value under NRB (+ any TRNB) taxable estate + all transfers in past 7 years (including exempted- charities/spouse) 2. exempt excepted estate - gross value not more than £3 million but after debt + spouse/charity exemption only, estate below NRB (debts can't do this alone) Factors requiring IHT400: - GROB subsisting at death or 7 years prior+ not exempt - more than 1 trust interest or 1 trust interest over £250k not passing to spouse - foreign assets over £100k - specified transfers total value over £250k - RNRB being made

Answer 160

inform HMRC after IHT 400 of - additional assets/liabilities found - corrections to value noted in IHT400 - changes to exemptions/reliefs - variation in original beneficiary entitlements affecting IHT liability (exempt B) Pay any additional IHT due or claim refund

Answer 161

Direct payment scheme- bank asked to directly pay HMRC (PRs do IHT 423) Borrowing - - from beneficiary (funds outside succession estate/where grant not required- joint account/life policy in trust) - from bank with commercial rates of interest

Answer 162

Applicants provide sufficient info about deceased's estate to probate registry Paper form (PA1A/PA1P) or online Supporting documentation

Answer 163

Done by solicitor/probate practitioner (they are PR or instructed by PR to do PR's application) - mandatory online application Most grants of probate - online application possible but not mandatory simple NCPR 20/22 applications (sole applicant, no minor/life interests) - mandatory paper application non-standard grants, complicated NCPR 20/22 double probate grant to reserved power, chain of representation grants, OG will missing/has issues, grants to attorneys, grants under NCPR 20 if life interest

Answer 164

PA1A - intestacy - NCPR 22

Answer 165

PA1P- valid will- grant of probate or NCPR 20 (will but none willing/able to act even if partial/fully intestate )

Answer 166

1. confirm identity of deceased and applicants Full name (nickname if assets owned in it)- grant issued in both names, DOB, DOdeath, address , domicile , marital status, value of foreign property applicants name + address + contact details (up to 4 applicants) 2. justify type of grant + entitlement to be PR Grant of probate : attach original will/codicils (kept at PReg), explain different names, evidence of why executors not applying (death cert, renunciation, power of attorney) NCPR 20: - category of applicant + refer to will - clearing off those with better rights (not equal) - is B a minor/life interest - 2 required NCPR 22: - familial relationship to D + category of applicant - whole/part of estate entitlement - clearing off those with better right (not equal)- explain surviving family members - is B a minor- 2 required 3. Info on value of succession estate + IHT status of estate confirm IHT400 sent + write in code, can't apply without it excepted estate - gross+net value of taxable estate 4. complete legal statement of truth, affirming proper administration of estate 5. Supplemental documentation

Answer 167

specific rare interest in land - in grant state if owned as separate grant required to deal with it different to normal trust of land

Answer 168

- Probate Registry Fees No fee for estates under £5k amount depends on professional applying + value of the estate PReg gives sealed copies of grant to PRs (no OG) - fee for each copy (no. depends on estate assets - 1 per asset holder as evidence of grant) - Certified copy of death certificate for personal applications (not for professionals) - Testamentary documents Attach original valid will / codicils (even those revoked as original terms of will not auto reinstated) - form of renunciation executor appointed by will who hasn't intermeddled, after this, administration done as if never appointed - IHT forms (not IHT400 itself) Letter from HMRC confirming IHT400 + tax paid receipt -> code given to PReg unless excepted estate - power of attorney only if grant issued in name of attorney (delegating right to apply) not if after to assist - affidavits If valid will but uncertainty around it

Answer 169

Formal written statement of fact signed under oath Needed where evidence to suggest problem w/ validity/enforcement of will or codicil Admissible as evidence in legal proceedings - statement (jurat) must be: - signed by all parties - dated - completed and signed by witness -independent solicitor/commissioner for oaths -> name, address, qualification stated - must follow immediately from text (not on separate page)

Answer 170

Affidavit of due execution - PR believes will valid but not clear that s9 Wills Act complied with : - oddly placed signatures - no attestation clause but all 3 signatures at the end - reason to doubt standard attestation clause (presumption of knowledge + approval) (T blind/frail signature- avoid by phrasing attestation clause to confirm special circumstances) - missing/incomplete/multiple dates OG will submitted with affidavit - usually made by one of the witnesses to confirm the will was executed properly If PReg accepts evidence -> grant proceeds

Answer 171

confirms timing of alterations made (if altered before signing , valid) consider physical condition of will (clauses crossed out, staple holes, paperclip marks, skipped page numbers, signs of revocation- burning/tearing) without affidavit - presumption of s21 Wills Act (no alteration valid) + common law

Answer 172

Affidavity of plight and condition or attempted revocation - signed by someone who can confirm condition of will when signed + when found following death- confirming physical condition If something meant to be attached - affidavit of search - PR confirms searches + enquiries made to locate it

Answer 173

NCPR 54- copy of will/codicil admitted to PReg if court order approves this Apply for court order using affidavit (including evidence that will/codicil existed after T's death + was correctly executed + copy document accurately records T's testamentary wishes)

Answer 174

Only when suitable signatory located, able, willing (not if witnesses dead) If will/codicil properly drafted unlikely to be need for it Home made wills, not supervised by solicitor - shouldn't make alterations, keep doc pristine, avoid physical marks Non contentious probate matters- witness statement with statement of truth can be used instead

Answer 175

Statutory and common law obligations Act within the scope of their powers Fiduciary duties PR is personally liable for loss caused by breach of duty

Answer 176

Common law- dispose of the deceased's body Statutory duty - to provide info on the estate to HMRC (IHT400 unless excepted) and pay IHT (can't get grant without this)

Answer 177

owed to estate beneficiaries + creditors 1. collect in - get in the real + personal estate of the D + administer it according to the law 2. provide an inventory + account of estate assets

Answer 178

Collect in : - identify + locate deceased's assets (incl. sums owed to the D) - Identify D's liabilities + creditors - obtain control, possession, or legal ownership of the assets (depends on nature) First 2 done for IHT400

Answer 179

Administer estate (only succession estate): - keep assets secure - pay D's debts + liabilities acc. to statutory order - meeting administration expenses - paying legacies - distributing the residue to those legally entitled

Answer 180

PRs must keep inventory (list of assets + values) and a record of steps they have taken (account) - recorded in Estate Accounts B or Creditor may ask to see them - if PR refuses- NCPR court order to produce inventory + account possible

Answer 181

Free to make own decisions of how to carry out duties within scope of will/statute but have a general duty of due diligence within a reasonable time (12 months from date of death: executor's year - if longer not necessarily breach, but must justify delay) Variable but if court decides breach of duties -> declaration of breach + damages Life appointment : - if new assets found, PRs have duty to handle - ongoing risk of personal liability if creditors/Bs not known at the time, appear after administration completed + demand entitlement

Answer 182

s1 Trustee Act 2000- reasonable skill and care Higher standard for professional PRs (solicitors) / those with or holding out to have special knowledge or experience Applies when PRs exercise power to invest, delegate, insure, purchase land

Answer 183

PRs must not (unless authorised by court/fully informed beneficiaries) - No conflict (purchase asset for fair value) - No profit profit from their position (not payment for professional service or if payments expressly authorised in will)

Answer 184

Statutory: - only statutory for intestate - will- statutory powers only apply in default of express alternative in will Will: - may contain express powers - may confer additional powers beyond statute - may exclude/modify statute Express provisions in will take priority over statute

Answer 185

Administration of Estates Act 1925 - PR specific Trustees Act 1925/2000 + Trusts of Land Appointment of Trustees Act 1996 (TOLATA) - powers for trustees apply to PRs too

Answer 186

- Sell, charge, lease - appropriate - insure - invest - charge for PR services - delegate powers - appoint trustees

Answer 187

May need ASAP after grant to repay debts + any loan for IHT

Answer 188

Appropriate in satisfaction of beneficiary's entitlement - can decide which assets to us - specific beneficiary must not be prejudiced - consent of specific recipient beneficiary required - value of asset considered at date of transfer/ appropriation not date of death If value of asset higher than beneficial entitlement -> PRs cannot appropriate If value lower -> PRs can appropriate + cash transfer balance Will often excludes need to obtain consent

Answer 189

Insure all estate assets for full value Authorised to pay insurance premiums out of estate income or capital

Answer 190

Hold assets for while -> duty to preserve the estate + actively invest General power of investment s3 TA - standard investment criteria s4 (suitability + diversification) Can acquire freehold/leasehold land in UK (s8 TA) Must review investments regularly (annually) s5 duty to obtain advice (unless unnecessary/inappropriate)

Answer 191

Professional PRs can claim reasonable pay for services as long as: - not acting alone - co PRs give written consent Lay PR/Sole professional PR needs express power in will to charge s28 TA - payment for services not treated as gift under s15 Wills Act (gift to attesting witness void)

Answer 192

All PRs may reimburse themselves for expenses incurred when acting for estate (travel costs, not time spent on process, even if turned down other work to administer)

Answer 193

PRs permitted to employ agents and delegate powers except for: - how + whether assets should be distributed - whether fees/costs are payable from income or capital - appointment of trustees/nominees/custodians Cannot delegate to beneficiary agent but can to co PR if sufficiently qualified Delegation done in writing to agent by PR + provide agent written policy statement which agent must agree to comply with Use of agent + terms of policy doc must be reviewed Common to delegate investment powers

Answer 194

Legacy given absolutely to minor beneficiary - no power to pay until 18 (no valid receipt) Assets held on trust (invested, maintenance + advancement) until 18, as trustees s 42 AEA - PRs can appoint trustees of the legacy (usually minor's parent/guardian) and give to them to hold

Answer 195

Minor's parent/guardian can give good receipt to PRs on minor's behalf (s3 Children's Act) - expressly included/excluded for clarity Express clause in will permitting receipt from minor 16 or older is valid

Answer 196

Testator was shareholder -> company survives their death, articles/SA provide for death Testator was partner -> PA should enable terms allowing it to continue Sole trader testator - limited common law power for PRs to sell business as going concern within a year of death (often expressly extended in will) - PRs may only access assets in business at date of death (not other estate) -> personally liable to business creditors (can indemnify from estate for liabilities incurred when raising revenue as business - realisation)

Answer 197

Will precedent with set of express provisions often - amended on case by case basis STEP provisions - set of express powers

Answer 198

More than 1 PR -> must make decisions together + exercise discretionary powers unanimously (unless will varies this) But sale/transfer of estate asset can be done alone (binding other PRs), except stocks + shares registered in PRs joint names

Answer 199

Claim of action against PR for breach of PR duties is devastatit (wasting of assets) where loss to estate from PR breach -> court order that PR personally pays Where no loss but breach of fiduciary duty -> account of unauthorised profit/ set aside transaction

Answer 200

1. Maladministration - Wrong assets to wrong beneficiaries - Residuary estate to meet liabilities payable from elsewhere in estate - Paying legacies before debts w/o retaining £ for creditors 2. Misuse of assets - personal use 3. Negligence - unreasonable delay - no/poor investment breaching duty of care 4. Breach of fiduciary duty - no conflict rule - no profit rule - self dealing

Answer 201

Personal liability + removal for not carrying out duties properly - court order under s 50 Admin of Justice Act 1950 appointing replacement PR - administration action = court takes over administration themselves

Answer 202

If trustee -> personally liable for loss from breach of trust All methods of protection available for PRs/Trustees - court directions - s48 AJA 1985 application - s27 TA25 notice - Benjamin order - Presumption of death Act - Insurance - Payments into court - Indemnity from Beneficiary - s 61 TA25

Answer 203

If administration difficulties foreseen (ambiguous will -> wrong beneficiaries) , seek court guidance - administration action to have estate administered by court - specific relief, application for guidance on particular matter Expensive + time consuming

Answer 204

Court directions are £ + time Q over will construction -> s 48 application to distribute according to written legal opinion (of person meeting criteria + appropriate for court to rely on opinion)

Answer 205

Distributing PRs remain personally liable to unpaid beneficiaries + creditors even if unaware of their claim during administration unless notice published of intention to distribute 2 months after advertising - London Gazette/ newspaper in area where land held on trust/ other appropriate - trades paper etc. Only protects from unknown Bs + creditors not known but missing Doesn't protect other beneficiaries receiving more - beneficiary/ creditor may start claim ( PRs who are also beneficiaries still liable -s27 only protects in PR capacity)(potential unknown children)

Answer 206

Known! but missing beneficiaries - no s27 TA so Benjamin Order - assume missing beneficiaries are dead / diff assumption No PR personal liability if estate administered in accordance with court order but assumption incorrect ( B/creditor can still make claim against other beneficiaries who have received ) PRs must first make full enquiries to establish true position + demonstrate no reasonable prospect of knowing truth without disproportionate expense

Answer 207

Court order declaring that a person thought to have died or not known to have been alive for 7 years or more, has died Order confirms presumed date of death Quicker + easier than Benjamin Order

Answer 208

PRs buy insurance to cover risk of beneficiary/creditor turning up after administration May not be possible if risk too high , may be very expensive (less expensive than Benjamin Order)

Answer 209

Seek indemnity from beneficiaries, promise to reimburse PR for any losses suffered by claim from beneficiary/creditor Only as good as person giving it, may be difficult to trace in future

Answer 210

PRs pay legacy amount into court + distribute balance of the estate (persons receiving legacy may not be in favour) Insurance preferable for missing B but payment into court better where beneficiary can be located but is refusing to accept their inheritance

Answer 211

Court order exonerating PR in whole/part from personal liability from the breach only made where: - PR acted honestly + reasonably - PR ought fairly to be excused for breach of trust + omitting to obtain court directions for matter

Answer 212

T's will may exclude/restrict liability for PR's wrongdoing - can exclude anything/ diff levels for lay v professional, statutory duty of care Cannot exclude liability for fraud Cannot exclude liability from creditors (s27 notice - protects from unknown creditors) Cannot exclude liability for debts

Answer 213

Method: - banks - withdrawal forms - personal possessions - stored + safeguarded - Sale/transfer of investments - financial advisor - Land registered at LR- transferred into name of PRs if not going straight to B Should be paid into PR's bank account (specifically for estate, no mixing w/ personal) or law firm client account (firm provides fair + reasonable credit interest)

Answer 214

Done as soon as collected in Duty to pay debts with due diligence - before the end of the executor's year PR fails to pay debts even with assets available -> liable to creditor + any beneficiary for consequent loss (costs of proceedings etc.) Express clauses cannot relieve PRs of creditors liability (s27 can from unknown creditors)

Answer 215

Pay any pre-grant loan used for IHT (minimise interest) - IHT loan often given with first proceeds undertaking to repay - failure is breach General administration expenses when they arise - cost of valuing assets - probate fees - s27 notice costs - professional legal fees for services provided to the estate

Answer 216

Solvent - sufficient assets for all funeral, testamentary, administration expenses, debts, liabilities (unsecured + secured) Insolvent - if not Insolvent estates debts paid in statutory order of Administration of Insolvent Estates of Deceased Persons Order 1986 - Money to pay legacies irrelevant to solvency

Answer 217

All of deceased's property can be used to pay debts - determine order by solvency, secured/unsecured debt

Answer 218

Secured if charged on part of deceased's property during lifetime (mortgage) Charged property has primary liability for payment of debt unless contrary intention shown in will (s35 AEA) If outstanding loan less than value of asset secured (usual) -> no other estate assets can be used to pay secured debt If outstanding loan greater than the value of the asset -> creditor becomes unsecured creditor (not discharged from other assets in estate, may need to sell)

Answer 219

Solvent estates - creditor paid in any event but choice of assets used may affect B (if their part used, may receive less) Statutory order of assets towards unsecured debts + administration expenses (unless expressly varied in will) Assets in each category exhausted in full before moving to next category

Answer 220

1. Property not disposed of in will (passing in intestacy but subject to retention of pecuniary legacy fund) 2. Residue (subject to pecuniary legacy fund) 3. Property the will sets aside or charges with the repayment of debt 4. £ in pecuniary legacy fund (if insufficient, legacies reduced proportionate to value) 5. Property specifically given (chattels)

Answer 221

Unsecured debts - express wording overrides order where contrary intention shown (wills may say residue is for debt) Secured debts - express wording can override general rule s35 that secured assets are subject to related debt - residue for debt not enough but clear/specific intention for B of secured asset to receive item free of debt

Answer 222

Beneficiaries use this when assets taken out of order to pay creditors - breach of statutory order Creditors have no obligation to return money paid to them Allows B with reduced inheritance to compensate by going for property which ought to have been used for debt - claim against assets inherited by other B if those assets should have paid debt

Answer 223

PRs should use the available cash to make payments -> if insufficient, sell non-cash assets General power of sale over whole estate -> comply with rules regarding appropriate part of estate + statutory order Consider - - CGT - Ease/speed of sale - Beneficiaries wishes

Answer 224

PRs acquire estate assets at market value on date of death : probate value Selling asset which has increased in value after death, profit may be subject to CGT if greater than tax-free allowance To avoid CGT/ using up tax free allowance - PRs should sell assets which haven't risen in value or transfer increased value asset to beneficiary without CGT charge - not disposal for CGT -> inherited at probate value Sell assets rapidly falling in value to preserve value of the estate

Answer 225

Quoted shares + financial investment products -> quick + easy sale (penalty charges) Unquoted shares + business interests + land -> long sale Cars + household possessions -> sold easily (but may not get full value)

Answer 226

PRs not bound to comply with Bs wishes but should take into account- can appropriate for - general legacy - residuary entitlement If B wants particular item + no legal objection, this should be respected (don't sell item)

Answer 227

1. Finalise deceased's IT + CGT position for tax year of death - D probably died part way through year - owe outstanding to HMRC/ get refund 2. Pay IT + CGT due during administration - CGT on taxable gains after disposal of estate assets - IT on income received during administration

Answer 228

- differentiate between D's and estate's income + gains - different rates/relief apply PRs liable to pay any IHT/CGT owed at date of death (or tax refunds due) PRs should record info + notify HMRC by submitting tax return for 6 April - date of death Tax liabilities are an estate expense - payable from estate assets - deductible when calculating whole for IHT Tax refunds due are an asset of the estate + should be included when valuing IHT estate

Answer 229

PRs access D's financial records - use any tax-free allowances -> pay tax Account for: - untaxed income due + paid before death - some income paid after death relating to period before death : a) unpaid rent due on properties deceased's let b) unpaid dividends declared before death Bank interest before death- taxed as deceased's (tax return if over £100) Bank interest after death - taxed as PRs (even if relating to period before death)

Answer 230

Outstanding CGT liability - consider disposals made by D before death (assets no longer owned by D before death) - use any tax- free allowance -> pay tax Death is not disposable for CGT - tax free uplift of assets disposed wiping out any gains

Answer 231

PRs liable for IT if estate assets generate income between date of death and distribution Interest on bank accounts, dividends, rent for let properties = taxed as estate income IT at basic rate - PRs cannot claim income tax personal allowance PRs don't have to report to HMRC/pay any income tax on the estate unless total income of any kind is more than £500 per tax year - if more, income tax due

Answer 232

IHT collected at moment income paid Income generated after assets given to Bs -> taxed as beneficiary's income - PRs give beneficiaries Form R185 recording any income tax already paid - Bs who don't pay income tax can receive refund - Bs who are higher taxpayers must make top up payment to HMRC- use R185 for their own tax return If below £500 - not taxable by PRs or Beneficiaries - not recorded in R185

Answer 233

CGT on disposal/sale during administration - if increased in value since death -> if amount of gain when sold/disposed more than tax-free allowance -> pay CGT (can claim tax-free allowance unlike income tax) - if assets fallen in value since death -> loss -> can be off set against other gains made during administration (total gain - total loss = taxable amount) (can only be claimed if gain also made)

Answer 234

- only post- death gains chargeable - no CGT for lifetime gifts received by D + assets still owned by deceased by date of death - if value higher, value for CGT is re-set to date of death value (not value when acquired - reset to no gain)

Answer 235

Gain made on disposal of chattel exempt from CGT if disposal given for consideration of £6000 or less

Answer 236

Better to sell as part of administration or transfer to Beneficiary to sell (not a CGT disposal itself) - B used tax free allowance/ higher rate taxpayer -> PRs sell assets + use estate tax-free allowance -> distribute cash to Bs (if other way around PRs used their allowance, transfer to B to use theirs) - PRs cannot claim main residence relief - transfer to B, sell later once criteria for MRR met - if sale generates loss -> consider if any gains to set off against

Answer 237

1. Legacies 2. Full distribution of residue PRs confident of sufficient assets to meet outstanding payments -> can make early payments of residuary B's share-> interim distributions (balancing payment at end of administration)

Answer 238

1. Identify Bs (will for legacies, rules of construction (class gifts, substitution clauses, s15- gifts to attesting witness void, s18 marriage subsequent to will revokes will, s33 D's issue predeceased's -> PD's issue receives their gift 2. Nature of interest (vested or contingent or express trust - what share) 3. Property they are entitled to - general gift/collection s21- alterations must be executed as will, s24- will speaks from death (not prior) 4. not needed for debts, legacy hasn't failed -> transfer 5. Method of transfer chattels - delivery £ - cheque/bank transfer shares - stock transfer form land - assent for legal estate in land LR AS1 6. Unless will expressly says otherwise, B must bear cost of transferring asset (inherits free of IHT)

Answer 239

Not delay - within executor's year - Claims against the estate - if IPFDA possible, delay distribution until 10 months of grant issuing (6 month deadline for issuing IPFDA + 4 months to serve notice of claim) - s27 TA notice - no distributions until after 2 month deadline for being notified by unknown beneficiaries/creditors

Answer 240

1. Specific 2. General 3. Residuary (unless will says otherwise) Can't pay in reverse (if insufficient, residue gets nothing) If enough for all specific but not all general - general legacies + demonstrative legacies out of specific fund reduced Within each category, if all can't be paid, abate proportionately

Answer 241

specific - transfer specific item pecuniary/general - if no direction of account (demonstrative), paid from residue

Answer 242

Final accurate tax figures and interest payable on loans, professional legal fees Law firm client account used to pay final invoice for fees -> balance distributed in residue

Answer 243

General + residuary legacies, PRs free to choose which to appropriate (s41 AEA) - cannot choose asset higher value at date of appropriation than B's entitlement - if value at date of appropriation less than entitlement - further balancing transfer needed

Answer 244

PRs need receipt from beneficiary when distributing Minor beneficiaries with vested interest cannot give good receipt: - express clause in will noting valid receipt from 16/17 (no younger) - parent/guardian gives receipt - PRs hold property until B is 18 - appoint trustees to hold property + pay trustees - pay legacy into court

Answer 245

Duty (s5 AEA) to produce an account of estate administration signed by all PRs + residuary beneficiaries (releases PRs from further liability) date account is signed = end of administration Contents: 1. capital account 2. income account 3. distribution account

Answer 246

- estate assets + liabilities at death - what happened to each item during administration - include pecuniary/specific legacies + IHT + solicitor's fees - then a balance to show what is available for distribution to Bs

Answer 247

- income received by estate assets during administration (+ how spent) - income expenses deducted as liabilities (any income tax payable) - balance available for distribution to Bs (rent income etc. - income tax)

Answer 248

- set out residuary beneficiaries entitlement (including interim distributions + final balance)

Answer 249

Adult of sound mind Max 4 on grant Max 4 on legal title to land More than 1 for life interest/minor interest in will never minor trustees Voluntary

Answer 250

self-declaration of trust - settlor becomes trustee transfer on trust - constituted when settlor transfers legal title to trustee (once willing to act)

Answer 251

executors may also be named trustees - hold legal title in this capacity after administration Or if someone else named as trustee - transfer property to them If trustees decline/impossible for them to act -> appoint alternative (executors hold property until then)

Answer 252

1. express powers to appoint in trust instrument (reserved to settlor, someone else) 2. statutory powers (s36 TA)- by anyone in 1, surviving/continuing trustees, PRs of last trustee to die if all dead - trustee death - trustee abroad for over 1 year - minor/no capacity trustee appointed - trustee refuses to act/wants to retire/unfit 3. beneficiaries using Saunders v Vautier rights (s19 TOLATA) not where 1 applies (express) direct trustees to appoint new ones instead of collapsing trust must be done in writing 4. Charitable trusts - Charity Commission 5. Court Equity won't let trust fail for lack of trustee , consider - wishes of settlor - don't appoint someone disputed over by Bs - reasonable views of existing trustees- must promote administration not impede

Answer 253

1. Trust instrument 2. Statutory power extends to removing where necessary to replace 3. Court's statutory + common law powers to remove - bankrupt - lacks capacity - is liquidated/dissolved company - not appropriate to remain in office (dishonest actions) 4. Charity Commission can remove

Answer 254

Voluntary: - by deed where at least 2 others/ 1 trust corp in place + person w/ power to appoint trustees consents - comply with statute or will remain in charge - obtain formal discharge of liability from Bs Beneficiaries' direction: - Bs with Saunders v Vautier rights -> power to compel trustee to retire (in writing + agreement of all Bs) - only if 2 trustees/1 trust corp remains

Answer 255

Power to pay income for maintenance, education, benefit of minor beneficiary w/ - vested, future interest - contingent interests with intermediate income Never where another B has prior interest in income (life tenant) Income accumulated until 18 (adult B has immediate right to income as it arises)- can use current + accumulated for advancement Can be varied by trust instrument (default included) Paid to parent (not unquestioningly)/service provider Okay if it indirectly benefits parent- reducing costs incurred If contingent in trust capital - do before 18 as they won't be able access until interest vests in capital (accumulated income added to capital)

Answer 256

Power to pay capital for advancement of beneficiary whose interest hasn't vested in possession : - adult + minor beneficiaries - vested, future interests - contingent interests Requires written consent of any beneficiaries with prior interest w/ full age + mind (if life tenant minor - cannot do) (not gift over, subsequent interest) Capital held on trust until contingency met. Trust instrument can modify/exclude Advance up to 100% of their entitlement (max 50% before 2014) - adjust balance (proportionate or strict monetary value) Moral/charity/improve their material situation Ensure its used for purposes provided

Answer 257

1. Trust instrument ouster/exemption clause Ouster clause removes duty Exemption - limits/excludes liability except fraud 2. Insurance Paid out of trust fund 3. Seek court directions interpretation of trust instrument -> not liable if followed 4. s48 AJA application to rely on legal advice (written legal opinion provided - hearing needed for disputes) 5. surrender discretion to court (rare - deadlocked, conflict of interest - only for specific issues) 6. rely on fully informed beneficiaries consent - get all consent (over 18) or just partial defence 7. defence of beneficiary instigation/acquiescence - partial defence to those who agreed to breach/indicated consent after - impound beneficiaries interest to indemnify against loss- where consented to breach in writing or benefitted 8. equitable defence of laches (knew of breach but delayed - unconscionable to claim entitlement now) 9. equitable relief s61 TA25 acted honestly, reasonably, ought to fairly be excused (applied individually to trustees) inadvertently acted outside powers- lay trustees who have sought advice 10. Claim against 3rd party adviser (negligence) 11. Claim for contribution from co-trustee/ 3rd party Civil Liability Contribution Act 1978- joint + severally liable for breach of trust - just + equitable contribution where 2+ liable for same damage (reflecting levels of guilt for loss, professional trustee) Full indemnity only where 1 trustee morally guilty, T is B, T is solicitor to trust + breach relied on their advice (controlling influence) Knowing recipient 3rd parties 12. Specific protective action for missing/unidentified beneficiaries

Answer 258

6 years from breach or from when interest vests in possesion/turns 18 (life tenant dies) No limitation for fraudulent breach/ proprietary claims against trustee (tracing, recover property ) If trustee is B + receives unfairly large £ - only excess can be recovered after 6 years (unless dishonest/unreasonable -> full amount recoverable)

Answer 259

1. Benjamin order - protects from missing beneficiaries, doesn't protect recipient beneficiaries, £ - make full enquiries first - can rely on assumption 2. s27 TA notice - protects trustees from unknown beneficiaries not missing (doesn't protect recipient Bs) 3. Retained fund - protects Ts+ RBs from missing Bs (ongoing trustee duties) but not always unknown if not big enough 4. Payment into court - for missing Bs not unknown (protects everyone, last resort) 5. Missing beneficiary insurance - trustee recovers from insurer when unknown/missing B claim, cheaper than Benjamin 6. Indemnity from beneficiaries - doesn't prevent claim from unknown/missing but can recover from beneficiaries

Answer 260

- Variation - Disclaimer - Precatory trust - IPFDA claim - Capital distribution from some will trusts within 2 years of death

Answer 261

Direction from OG beneficiary to PRs to transfer their entitlement under will/intestacy/joint property to someone else - can be done after inheritance accepted - for whole/part - OG B free to pick whomever Variation read back to date of death - OG doesn't make PET (IHT if dead in 7 years), IHT on death estate re-calculated as D left property to new B Written back for CGT (made by deceased, no CGT (s62 TCGA) - new B acquires at date of death value (CGT only charged when new B disposes) Gifts of cash exempt from CGT

Answer 262

Must be (s142) - made by OG B in writing - within 2 years of D's death - containing an express statement that s142 should apply - not be made for any consideration Don't need PR approval but if more IHT due, PRs should sign variation + give to HMRC with extra due (can only refuse is assets insufficient for extra tax) Even if whole estate unaffected, the amount an exempt B receives may change, changing IHT/ TNRB left OG B can choose whether or not to write back IHT/CGT - if not, no formal variation, just gift to new B

Answer 263

Minor/ no capacity B cannot vary without consent of court No limit to number of times will can be varied but each asset can be varied only once (not written back after) Restrictions on variation: - where D was life tenant, trust deed determines asset distribution - GROB by D - D was not legal owner, subject to IHT but not part of distribution estate OG B varying for new B is never making GROB - treated as if D made it

Answer 264

- can only disclaim before acceptance - can only disclaim whole gift - disclaiming rights of B under will doesn't disclaim rights under intestacy - may arise as consequence of disclaiming inheritance - inheritance passes as if gift has failed - OG B can't nominate alt. B Written back like variations (CGT/IHT) w/ written election - person who gets it treated as entitled on death

Answer 265

Gift made to beneficiary by will with wish of how beneficiary should pass those assets to others (no formal trust , wishes not binding) Allow flexibility for chattel gifts - if T changes mind, update letter of wishes without amending will - subject matter of will must be certain If B acts on T's wishes -> within 2 years of death, treated as gifts made in will (read back) for IHT (OG is not making PET) No written election for writing back for IHT needed - automatic Cannot write back for CGT - disposal by OG B even if in a accordance with T's wishes - short time between death + distribution, chattels unlikely to increase much in value