Named assets in will

securityguy

Malthusian wrote: »

I don't disagree with this, but how would you prove you did not know the contents of the Will? I can imagine an attorney having difficulty claiming that he did not know what was in someone's Will despite being someone they trusted enough to be appointed their Attorney.

You don't need to: an attorney has no responsibility to protect the assets of the estate prior to death for the benefit of beneficiaries. The end. The issue only arises if they are argued to have acted in a way which is both contrary to the interests of the donor and enhances their position as beneficiary. Note the test "contrary to the interests of the donor": if the attorney has a choice of several acts, one of which happens to also improve their position as a beneficiary later, I think that is OK. Immoral, perhaps. Unethical, probably. But illegal? I suspect not. The attorney cannot enrich themselves at the expense of the donor, but they don't have a similar duty to third parties.

And certainly, if the attorney acted in a way which was contrary to the interests of the donor in order to protect the interests of a third party beneficiary, they would have breached the terms of the PoA.

Not knowing the will would remove some possibilities for accusations in that situation.

There is also the problem that if an attorney has, in fact, acted contrary to the interests of the donor, but the donor is now dead, it's not immediately obvious who has the right to being a legal action, and against whom, and with what outcome.

Perhaps the wise attorney should try to find out the contents of the Will so that they can minimise the possibility that a future dispute can arise (e.g. by avoiding selling properties that are specific bequests in the Will if there is another way of raising the money)

They had better be damned certain that what they did was in no way deleterious to the interests of the donor, however. Because anything done to benefit a third party which is contrary to the interests of the donor is flatly in breach of the PoA.

securityguy

Keep_pedalling wrote: »

Particularly if said attorney actually benefited big time from the sale of another beneficiary's bequest.

If you have a choice between two courses of action as an attorney, which of which is in the donor's interests and incidentally benefits you at the expense of another potential beneficiary, and another which does not benefit you but is not as good for the donor, then following the second course of action is illegal.

if you have a choice between two courses of action, both in the interests of the donor, one of which enriches you, the other of which doesn't, then the test would be what a reasonable attorney would do in the absence of the issue of enrichment. Attorneys must not enrich themselves at the expense of the donor, but equally they must not act against the interests of the donor in order to avoid the appearance of enrichment.

The primary test for attorneys is the interests of the donor. Any other consequence of their actions is secondary. An attorney who, say, delayed or complicated the sale of the donor's house whose value was needed for care, in order to avoid the sort of problems in this thread (ie, to protect the interests of themselves or another beneficiary, or to avoid problems for executors) would do so at their peril.

If, as is common these days, you are successively attorney, executor and beneficiary of your parents and their estate, then when you are acting as attorney you must not consider your later roles as executor and beneficiary unless it absolutely does not affect the donor. So making use of your position as attorney to gather information you might need as executor is OK, but (for example) retaining easily saleable assets which are named in the will and instead realising care costs by selling more complicated assets at an undervalue for quick sale is absolutely not OK.

vigman

Malthusian wrote: »

Nah. HMRC will get the same cut anyway, and they will get their cut

.

.........but although professional valuers were used for domestic and commercial valuations HMRC increased every valuation sometime by as much as a third for their IHT cut!

Vigman

Keep_pedalling

vigman wrote: »

.........but although professional valuers were used for domestic and commercial valuations HMRC increased every valuation sometime by as much as a third for their IHT cut!

Vigman

"Professional" as in estate agent, or professional as in a RICS surveyor?

Keep_pedalling

securityguy wrote: »

If you have a choice between two courses of action as an attorney, which of which is in the donor's interests and incidentally benefits you at the expense of another potential beneficiary, and another which does not benefit you but is not as good for the donor, then following the second course of action is illegal.

if you have a choice between two courses of action, both in the interests of the donor, one of which enriches you, the other of which doesn't, then the test would be what a reasonable attorney would do in the absence of the issue of enrichment. Attorneys must not enrich themselves at the expense of the donor, but equally they must not act against the interests of the donor in order to avoid the appearance of enrichment.

The primary test for attorneys is the interests of the donor. Any other consequence of their actions is secondary. An attorney who, say, delayed or complicated the sale of the donor's house whose value was needed for care, in order to avoid the sort of problems in this thread (ie, to protect the interests of themselves or another beneficiary, or to avoid problems for executors) would do so at their peril.

If, as is common these days, you are successively attorney, executor and beneficiary of your parents and their estate, then when you are acting as attorney you must not consider your later roles as executor and beneficiary unless it absolutely does not affect the donor. So making use of your position as attorney to gather information you might need as executor is OK, but (for example) retaining easily saleable assets which are named in the will and instead realising care costs by selling more complicated assets at an undervalue for quick sale is absolutely not OK.

Thinking about it what the attorney did is rather accademic now, as the lack of liquid funds in the estate to pay IHT should have forced the sale of both remaining properties meaning all 3 bequests failed, so everything should end up with the residual beneficiaries, which would be fine if we are talking about the same people.

The whole mess is down to the testator making such a poor will, compounded by the family failing to sort out an amicable and fair solution between them via a DoV.

I wonder how much of this was down this odd thing some people have about trying to keep property within the family from beyond the grave.

getmore4less

Keep_pedalling wrote: »

Thinking about it what the attorney did is rather accademic now, as the lack of liquid funds in the estate to pay IHT should have forced the sale of both remaining properties meaning all 3 bequests failed, so everything should end up with the residual beneficiaries, which would be fine if we are talking about the same people.

The whole mess is down to the testator making such a poor will, compounded by the family failing to sort out an amicable and fair solution between them via a DoV.

I wonder how much of this was down this odd thing some people have about trying to keep property within the family from beyond the grave.

Abatement to pay debts including IHT starts with the residual estate.

if you get to abatement of legacies there will be no residual estate.

Keep_pedalling

getmore4less wrote: »

Abatement to pay debts including IHT starts with the residual estate.

if you get to abatement of legacies there will be no residual estate.

I had to look that up, but thanks for putting me straight.

vigman

Keep_pedalling wrote: »

"Professional" as in estate agent, or professional as in a RICS surveyor?

RICS surveyors. One company for domestic residences and one for commercial

Vigman

Yorkshireman99

vigman wrote: »

RICS surveyors. One company for domestic residences and one for commercial

Vigman

In which case they both did a lousy job. The surveyor is expected to give a realistic value and negotiate with the District Valuer if need be. There should never be such a difference between the two.

vigman

Yorkshireman99 wrote: »

In which case they both did a lousy job. The surveyor is expected to give a realistic value and negotiate with the District Valuer if need be. There should never be such a difference between the two.

Not necessarily fair. I used one of those companies in the past for a complex land and property deal from site survey to planning acceptance and they were diligent and reasonably priced

It seems odd that one property has now been valued at £400-£450k by four professionals will only be accepted as £600k for IHT valuation?

Vigman