My Dad's Will - quick question please

Tryingsohardtofloat

Hi, my Dad is updating his Will & wants to know if there is a sliding scale of years that income after BR can be accessed. Or if after discharge, all income or inheritance is mine alone.

For example if I'm discharged on 1 January, he makes a Will on 2nd & leaves me his house, then he dies on 3rd, because I'm discharged can I keep the house or will I have to notify the OR & they have a claim due to short timescales?

Sorry if its basic & I should know this, I'm overthinking it

Pee

Speak to your trustee in bankrupcy, but my understanding is if you are discharged, irrespective of when the will was written, you will inherit and it will not need to be referred to the OR. If you are not yet discharged, your Dad should be talking to a solicitor about a new will leaving assets for you in a discretionary trust with someone you trust as trustee to look after it until you are ready to receive it i.e. after you have been discharged.

National_Debtline

Hello there, this is taken directly from the Insolvency Service technical manual:

17. Interest under a will
The trustee can claim an interest under a will when such interest devolves upon the bankrupt before discharge. This means that if the person who made the will dies during the period prior to the discharge of the bankrupt, the trustee can generally claim the property bequeathed to the bankrupt, under the provisions of section 307, even if it is not received by the bankrupt until after his/her discharge.

Where, however, the property is left to the bankrupt under a protective trust the trustee will not be able to claim the property. A protective trust is usually created in relation to freehold or leasehold property and gives the beneficiary of the trust a time-bound interest in the property (such as a right to occupy to a certain date) without having the right to sell it.

Where the official receiver encounters a protective trust, and the property is of sufficient value to justify it, he/she should seek legal advice to establish the validity of the trust and explore any means of challenging it.

In all cases, notice of the bankruptcy order (NORD1) must be given to the trustees/executors of the will as soon as possible. If the official receiver becomes trustee a second notice should also be sent in duplicate, with the trustees of the will being asked to return one copy receipted for the file (form NEXE).

Notwithstanding the bankruptcy order, a bankrupt retains his/her right to challenge the provisions of a will under The Inheritance (Provision for Family and Dependants) Act 1975 and the trustee plays no part in such proceedings.

You can find the full text here:
http://www.insolvencydirect.bis.gov.uk/freedomofinformation/technical/CaseHelpManual/A/AfterAcquiredProperty.htm

Best wishes,

David @ NDL.

magpiecottage

It is normally possible for the testator (the person making the will) to establish a trust which holds the assets. This means the assets are not legally owned by the intended beneficiary (the bankrupt) but by their own trustee(s) who are completely separate from the trustee in bankruptcy.

The trustee in bankruptcy cannot normally force the issue. The only exception is if all known or potential beneficiaries are 18 years old and capable of making their own decisions. If that happens then they can agree between themselves that the trust should be ended and the assets distributed. This is in accordance with the precedent in Saunders v Vautier.

If the bankrupt was the sole beneficiary then the trustee in bankruptcy could instruct them to use this precedent to release the funds. The can be circumvented by using a potential beneficiary who will not permit the Saunders v Vautier rule to be applied.

Tryingsohardtofloat

Thanks for your replies, I've read them multiple times & they appear to be referring to inheritance during bankruptcy though. The question of what would happen to an inheritance during my undischarged period has already been addressed by my dad's solicitors & they are in a trust.

My question is that if after discharge the OR would still have a claim upon them if they are inherited normally & the trust is not in place.

After discharge would I have to declare an inheritance to the OR?

Apologies if I wasn't clear