Changing executor on a Will - implications

Spivved1987

Keep_pedalling said:

Spivved1987 said:

I believe (but would be happy to be proven wrong) that this has no IHT implications, because gifting etc dates backwards from the date of death, and the Will date is not relevant. I am however concerned that the DDoA police will look at the new date to calculate whether things 'could have been foreseeable' in 2024 whereas they would not be able to make the same inferences about a Will made nearly 10 years ago.  Not that there is any change in our health, I hasten to add, but obviously 2024 is a lot nearer than 2015 to the time when such things could happen.

Any thoughts?

My thoughts are that this makes no sense, gifting is something you do when you are alive, your will deals with your estate on the day of your death. Your will deals with your inheritable estate only, IHT covers both your inheritable estate and non exempt gifts from the previous 7 years.

If you are sure there is nothing in you will that needs changing other than the executors then you just need a codicil, however it is worth reviewing the whole will after ten years to make sure it still makes best use of any changes in the tax rules since the original was drafted, e.g. the introduction of the RNRB.

The IHT/Gifting issue is peripheral to my question, the business part of which is I am however concerned that the DDoA police will look at the new date to calculate whether things 'could have been foreseeable' in 2024 whereas they would not be able to make the same inferences about a Will made nearly 10 years ago.

The suggestion of a codicil might repay further investigation, so thanks for that. I suppose the question I need to be sure about is "When is a new will not a new will"....

Keep_pedalling

Spivved1987 said:

PKeep_pedalling said:

Spivved1987 said:

I believe (but would be happy to be proven wrong) that this has no IHT implications, because gifting etc dates backwards from the date of death, and the Will date is not relevant. I am however concerned that the DDoA police will look at the new date to calculate whether things 'could have been foreseeable' in 2024 whereas they would not be able to make the same inferences about a Will made nearly 10 years ago.  Not that there is any change in our health, I hasten to add, but obviously 2024 is a lot nearer than 2015 to the time when such things could happen.

Any thoughts?

My thoughts are that this makes no sense, gifting is something you do when you are alive, your will deals with your estate on the day of your death. Your will deals with your inheritable estate only, IHT covers both your inheritable estate and non exempt gifts from the previous 7 years.

If you are sure there is nothing in you will that needs changing other than the executors then you just need a codicil, however it is worth reviewing the whole will after ten years to make sure it still makes best use of any changes in the tax rules since the original was drafted, e.g. the introduction of the RNRB.

The IHT/Gifting issue is peripheral to my question, the business part of which is I am however concerned that the DDoA police will look at the new date to calculate whether things 'could have been foreseeable' in 2024 whereas they would not be able to make the same inferences about a Will made nearly 10 years ago.

The suggestion of a codicil might repay further investigation, so thanks for that. I suppose the question I need to be sure about is "When is a new will not a new will"....

I think you are over thinking this. The only time DDoA might come up is when a financial assessment is being carried out in relation to care costs or if you are applying for means tested benefits. In both cases you are not going to be asked to show a copy of your will and even if they happened to se a copy you left laying about I can’t see how anything in it could show DDoA unless it mentioned the pile of cash you have hidden under the floor boards. 

Savvy_Sue

Spivved1987 said:

km1500 said:

the only other thing perhaps is to consider whether he really do need to change executors it seems that you have more than one so unless there is some other reason I expect only one of them will act anyway

To be honest my mistake was assuming (incorrectly) back in 2015 that Executors could not be Beneficiaries, so the two Executors (same people for both Wills) are not spouse or offspring. In retrospect I should have made my wife one of my Executors, and myself one of hers.

Slightly shocked that a solicitor did not suggest reciprocal executorship, and spell out in the process that executors can be beneficiaries (witnesses can't be).

Given that, I'd be getting quotes from another solicitor and getting a proper check that the wills do what you want them to do. Think about who'd be well placed to assist you and your wife on the first death, and appoint a backup to them too (we have each other plus the boys, for example, childless sibling has niblings).

doodling

Hi,

Spivved1987 said:

Keep_pedalling said:

Spivved1987 said:

I believe (but would be happy to be proven wrong) that this has no IHT implications, because gifting etc dates backwards from the date of death, and the Will date is not relevant. I am however concerned that the DDoA police will look at the new date to calculate whether things 'could have been foreseeable' in 2024 whereas they would not be able to make the same inferences about a Will made nearly 10 years ago.  Not that there is any change in our health, I hasten to add, but obviously 2024 is a lot nearer than 2015 to the time when such things could happen.

Any thoughts?

My thoughts are that this makes no sense, gifting is something you do when you are alive, your will deals with your estate on the day of your death. Your will deals with your inheritable estate only, IHT covers both your inheritable estate and non exempt gifts from the previous 7 years.

If you are sure there is nothing in you will that needs changing other than the executors then you just need a codicil, however it is worth reviewing the whole will after ten years to make sure it still makes best use of any changes in the tax rules since the original was drafted, e.g. the introduction of the RNRB.

The IHT/Gifting issue is peripheral to my question, the business part of which is I am however concerned that the DDoA police will look at the new date to calculate whether things 'could have been foreseeable' in 2024 whereas they would not be able to make the same inferences about a Will made nearly 10 years ago.

The suggestion of a codicil might repay further investigation, so thanks for that. I suppose the question I need to be sure about is "When is a new will not a new will"....

As I said previously, the contents of your will cannot have any impact at all in relation to DDoA.  You will be dead, you will not need care (except in a one off sense by an undertaker).  No one is going to try and put your dead body in a care home and recover the costs of them looking after you.

If you have received care before you died and the cost of that is recoverable then that will be a debt that comes from your estate.  Your will only allows you to determine what happens to your assets after all the debts have been paid.

Why do you think that your will will have any impact on DDoA?

Spivved1987

doodling said:

Hi,


Why do you think that your will will have any impact on DDoA?

It would be the effect, not on the dead me (assuming I die first) but on my wife's potential DDoA assessment. The Will has the house (its ownership is split 50:50) going into Trust on the first death, rather than going to the surviving spouse and then being available to be assessed 100% for capital resource. In a related way, our savings are split and largely go to the kids rather than the surviving spouse.

km1500

you don't need a solicitor for a codicil - just write a short paragraph updating your wishes re: executors, sign it in the presence of two witnesses (not benificiaries or the new executors) and have them witness it.

https://www.rocketlawyer.com/gb/en/family-and-personal/make-wills-and-trusts/document/codicil

or if you want to.pay for a template

https://www.legalo.co.uk/template/wills/codicil-to-change-executor/

bobster2

Spivved1987 said:

doodling said:

Hi,

Why do you think that your will will have any impact on DDoA?

It would be the effect, not on the dead me (assuming I die first) but on my wife's potential DDoA assessment. The Will has the house (its ownership is split 50:50) going into Trust on the first death, rather than going to the surviving spouse and then being available to be assessed 100% for capital resource. In a related way, our savings are split and largely go to the kids rather than the surviving spouse.

Ok - I think your concern really relates, not to DDoA, but to possible action under the Inheritance (Provision for Family and Dependants Act) 1975.

DDoA is something someone does to themselves - depriving themself of assets. Leaving your assets to someone other than your spouse cannot be DDoA by your spouse. By definition these were your assets - so your spouse cannot deprive themselves of something that wasn't theirs.

However, if the surviving spouse owns 50% of the house - and has a lifetime right to live there - and has their own savings - I don't think action for failing to provide for the spouse is really very likely.

doodling

Hi,

Spivved1987 said:

doodling said:

Hi,


Why do you think that your will will have any impact on DDoA?

It would be the effect, not on the dead me (assuming I die first) but on my wife's potential DDoA assessment. The Will has the house (its ownership is split 50:50) going into Trust on the first death, rather than going to the surviving spouse and then being available to be assessed 100% for capital resource. In a related way, our savings are split and largely go to the kids rather than the surviving spouse.

So no-one is being deprived of anything?

Your wife who owns half a house, will still own half a house no matter what your will says.  You are free to give your half to whoever you like in your will.

If there was to be any discussion about deprivation of assets, it would relate to your decision to split ownership of the house and savings in the way that you have.  That presumably happened long ago and changing your will won't change that.  In reality, it would be almost impossible to argue that a near 50/50 split between spouses constituted deprivation of assets, even if it happened yesterday.

As others have noted, if you didn't make sensible provision for your spouse in your will then an Inheritance Act claim might be possible but from what you have said, that sounds extremely unlikely.

I see no cause for concern. My personal view is that codicils are from an age before word processors were invented and should probably stay in that age, except where you really need to modify your will ASAP with only pen, paper and witnesses available to you.

Spivved1987

Thank you all for the input. Very helpful, and quite comforting.