Holding a house 'In Trust'

optimist?

I trawled a lot of the posts in this section hoping that I might find something near to my problem but, unsurprisingly, nothing seemed to parallel my situation, so here goes.
My mother died very recently and her Will states that my brother 'should have the use of the (her) house and its contents until he decides otherwise or until he can no longer maintain it'. While this situation exists he and I (as executors) should 'hold the house in trust'. Now this is what the Will states, but neither she nor the unprincipled shyster of a Lawyer (to whom it now turns out she paid a LOT of money for the Will) did anything at all about formally setting up a 'Trust' of any kind for us to administer. So there is no Trust, and she would have railed against the idea that it would cost her anything to create one, which may be why she has landed me with this problem. The situation now is that my brother simply cannot maintain the property, nor can he afford, on his low wage, to keep it going as it was before (when Mother was in receipt of all sorts of benefits to which he is not entitled) so the plan is to sell it, get him a smaller flat and keep his expenses to a minimum. My questions are therefore, in order:
Can we, as executors, ignore this expressed 'wish' within the Will to have it held in a 'Trust', which was never created in the first place? Bearing in mind that if we DID now have to create a 'Trust', that would be spending money on something that we would very soon be dissolving.

The house is currently in my Mothers name but her bank accounts have been closed down, so if we make moves to sell it, to whom should go the proceeds, and where? Leading us to the next question:
Should the title deeds to the house be left in her name or now be re-registered in the name of the main executor (me) pending the proposed sale so that I can eventually disburse the proceeds to the beneficiaries - of which there are three, who are all in agreement that we should do the practical thing, sell the house and move on?

I don't expect a swift or easy response to these questions but hope that there may be some positive way forward which does not make us fall foul of the Law. We are unhappy that Mother should have been fobbed off with what seems to us an unworkable Will - and to be honest I am pretty mad that I have inherited such a sticky problem when I have spent the last three weeks sorting out everything else with, largely, great success, only to run up against this brick wall.
I will try to keep an eye on this post for responses but please forgive me if I am late with my own replies as there is still a lot to do and I spend most days out and about, organising stuff!
Many thanks all,
Optimist

Bobziz

Others more informed than me will confirm, but I'd say the will itself automatically establishes the trust, nothing else to do in that respect. Sounds like it's an interest in possession trust with your brother as the beneficiary. What does the will say should happen if your brother no longer wants to live in the house or wants to maintain it ?

xylophone

This seems to be a right to reside rather than a full interest in possession.

And from the outset, it appears that your brother (your fellow executor and Trustee )does not wish to exercise the right.

You will need probate before you can deal with the property.

You should open an executors' account once you have probate to receive monies owed to the estate.

You might wish to consult a STEP qualified solicitor concerning a Deed of Variation of the will which would direct that the property be sold and the proceeds shared equally between the three beneficiaries.

https://www.gov.uk/alter-a-will-after-a-death

https://www.step.org/step-directory

CRANKY40

Re the title deeds - they can be left in your mother's name until you sell. The solicitor will ask you for proof of your right to sell the house which in my case was the Letter of Administration.

Mojisola

optimist? wrote: »

My mother died very recently and her Will states that my brother 'should have the use of the (her) house and its contents until he decides otherwise or until he can no longer maintain it'. While this situation exists he and I (as executors) should 'hold the house in trust'.

So there is no Trust

the plan is to sell it, get him a smaller flat and keep his expenses to a minimum.

I don't expect a swift or easy response to these questions

Bobziz wrote: »

I'd say the will itself automatically establishes the trust, nothing else to do in that respect.

As Bobziz says - there is an easy response - the house is automatically in a trust because of the will - you don't need to create any other paperwork.

If you haven't got probate, you will have to apply for that.

Did the will say what would happen to the money when the house was sold?

Flugelhorn

Much good advice above, sounds like selling "because he is not a position to maintain it" is the correct thing to do. The trust exists, the names on the registry stay until you sell - no need to change them at the mo.

Most important thing is that the beneficiaries (including brother I assume) are in agreement, keep it that way and it should be a smooth process - biggest problem can be when the resident beneficiary decides to stay put at the cost of the others

optimist?

Thank you all for your input, it is good indeed to get the perspectives of others when you find yourself in this position. Application for probate went in a week ago - should be another seven weeks to clear.

If you feel that the Will itself constitutes a 'Trust' then I think we should at least try to make that work, without the need to expensively formalise it with lawyers. I still have contact with one bank, who are waiting for sight of the grant of probate before finalising the account - during this hiatus they are willing to accept payments IN to the account, just won't pay OUT: perhaps I can persuade them to operate it as an Executors Account in readiness for the eventual house sale - worth asking. If they won't do that then I will follow your advice and open an Executors Account somewhere local and convenient. If the current name on the Land Registry is OK for now then I am happy to leave it like that until probate makes some sort of difference that I may have to make the best of. All beneficiaries (me, brother, sister) are in agreement that we have to do this as we cannot make the present arrangement work indefinitely- we should be OK for maybe six months or so. To answer your question, when the property is sold the proceeds are split three ways and, again, we are all OK with it. Rest assured my brother will NOT suffer by this arrangement, we will make sure of that.

CRANKY40 recieved a Letter of Administration to authorise his actions - can I expect the same automatically as an Executor when probate comes through, or do I have to apply somewhere (I am in England) ? Obviously everyone concerned will want proof that I have the authority to make the sale, and this is an aspect I have never experienced before.
Grateful thanks to all, you have really helped.
Optimist.

Mojisola

optimist? wrote: »

If the current name on the Land Registry is OK for now then I am happy to leave it like that until probate makes some sort of difference that I may have to make the best of.

Don't change the name at the LR. You can sell the house as the executors.

Bobziz

so in order, the Will formalises the trust, there's nothing left to do, or that solicitors could do to make it more formal.

I was advised recently that probate is taking 'between 8-10 weeks'. It seems to be a standard response to the question that all probate offices are giving at the moment.

You should be able to continue to pay into the bank account until you decide to close it in your capacity as executor, but they may only accept electronic payments, rather than cheque or cash. When it comes to distributing the estate, you'll likely only be able to close the account and transfer the funds into one other account, not multiple accounts. You could then distribute from that sole account, but be aware that if that account holder should die, then things could get complicated as to who's money it is etc. Alternatively, as you say, open an executor account.

Keep good records of the actions of the trustees, who must be in agreement.

It's my understanding that a letter of administration is what you get when dealing with an estate where;'s there's no will. Where there's a will, you get probate, which is the authorisation required to administer the estate as an executor.

Others will confirm.

optimist?

Thanks Bobziz and Mojisola, Got that now and feeling more confident that there WILL be a satisfactory end to all of this , someday. Seeing the Bank tomorrow about converting the existing account into an Executors account, which will make it mechanically possible to commence the sale process once Probate is through. By the way, probate IS currently taking eight weeks - it just came through for my Mother in Law, who died six weeks before my own mother - yes, it has been a very trying New Year for me.
Many thanks to all on this thread, you have made a real difference and it IS appreciated,
All the best, Optimist (turns out to be a good name choice!)