Not enough money left in will

QuimbusFlestrim

My father passed away and left a specific instructions in his will from 9 years ago when he first sold his house. I am the sole executor.

He left these instructions in this order in the will:

1) He left £5k for my brother;
2) £5k for my father's friend;
3) £5k for each of his grandchildren (4) from his savings account;
4) £500 to a charity;
5) and Everything else should be mine.

In total £30, 500k specifically named with the residue coming to me.

We sold his house about 9 years ago and this has mostly been taken up with care home fees over the years and his savings have dwindled. 

He passed away with £16k in his bank account and £20k in a savings account. He owes care home fees and funeral expenses (which I have now paid) leaving less than £1k. His estate only amounts to less than £21k. I am the executor and do not want to employ a solicitor for such a small amount, but am unsure how to divide up the final £21k. Although his intention was that I would get the bulk of his estate, it looks as if I will end up with nothing, which I am sanguine about.

How should I divide out the amounts?
Should the grandchildren get the whole amount because he specified it should come from his savings, whereas the rest should come from his estate (although unspecified)?
Should the estate be divided proportionately between the 7?
Should the grandchildren get £20k as this is from his savings as explicitly stated, and the others get the £1k divided proportionately ?

molerat

If the will did specify exactly where the funds come from then they should be paid if possible as specified and the rest pro rata to the amounts stated.  Unfortunately you will get nothing if there is nothing left.  Always a danger with a poorly drafted will.

Some people I know received £41K each when when they would have only received around £8K each, other parties lost out on the c £108K each they should have received, if the will had been drafted correctly to take account of the changed circumstances.  A slight reversal of your situation as the residuary beneficiaries were the ones that gained.

MorningcoffeeIV

A quick search suggests this gives the answer - 

https://farewill.com/articles/9-things-you-need-to-know-as-a-beneficiary-of-a-will

So effectively grandchildren get £20k and the rest is split across everyone else (except you). But worth getting a second opinion.

4) There are different categories of beneficiary in a will

Will beneficiaries aren’t all the same. They can be split up into the below categories:

• Specific - when you’ve been left a particular item in a will that can be identified and distinguished from other things, like a specific piece of jewellery. If this item had been sold or given away before the death, you wouldn’t be able to receive it and you wouldn’t be entitled to a replacement item from your loved one’s estate. 

• General - when you’ve been left an amount of money or something else which can’t be specifically identified. A general beneficiary will receive their inheritance from the general pool of assets of the estate. For example, you could have been left the sum of £5,000 in a will. This amount can be paid from any of the assets in the estate, which haven’t already been specifically gifted in the will, such as bank accounts, premium bonds, investments etc. 

• Demonstrative - when you’ve been left a certain gift from a specific source. For example, if you’re entitled to receive “£5,000 from the National Savings and Investments account”. If there isn’t enough money from the specific source when the person dies, you’d be entitled to have the money from the rest of the estate instead. This means you would  then be considered a general beneficiary.

• Residuary - when you’ve been left a percentage of the final estate after all the debts and liabilities are paid. 

The different categories of beneficiary can be important. 

If there isn’t enough money in the estate to pay all of the gifts in the will, the law states that there’s a certain order that decides which beneficiaries should lose their inheritance first:

1. The residuary beneficiaries would lose their right to their inheritance first

2. Then the general beneficiaries 

3. And then the specific and demonstrative beneficiaries. 

handful

From my fairly limited understanding, this is not going to end well for you I'm afraid. Although the intention was to make you the main beneficiary, the wording of the will does not take into account the small estate. This should have been split in % terms and used residual beneficiaries in the terminology. Can I suggest you post this in the more specific board below? Good luck

https://forums.moneysavingexpert.com/categories/deaths-funerals-probate

Linton

There  are strict rules as to how the money should be split.  Your final sentance seems correct...

AIUI the £20K savings account  is split between the 4 children because the source is identified.   The brother, father's friend and the charity get the correct proportions of the remaing £1K (10:10:1) because the value is specified whereas the source is not, and you get nothing because there  is no residue.

For more info google "abatement".

OldMusicGuy

There's an important lesson here for anyone with elderly parents that may need to go into self-funding care. We faced the same situation recently with my FiL, who had written a will leaving fairly generous specific amounts to various people and then the balance to be split between his kids. When he went into care we had a discussion about finances and came to the conclusion that the way the will was written could mean his children would end up with very little (or nothing, just as you have) and this was not what he wanted. 

So he decided to change the will so that there were no specific amounts allocated, instead everyone was a residuary beneficiary, that way whatever was left when he died would be split in a way that made sense to him. 

Sea_Shell

Sorry to hear of the (likely) unintended consequences that his will has thrown up. ☹️


Generally, as sole executor, was there any onus or discretion available to you to CHOOSE which account the funeral costs (etc) were paid out of?

In hindsight, was there anything stopping these coming out of the "savings" account, other than any moral duty to act in the interests of (some) beneficiaries over others, (which happens to include yourself).

QuimbusFlestrim

I used the current account as it was the most easily accessible and prior to the death I had POA and operated all my father's finances. I do not want to stop the children getting the monies as I think they should be the main beneficiaries. I had my head in the sand about the will and did not really question what it said until it was too late. I know my father said he wanted me to get everything, but his intention and what has happened with the will has resulted in something that he did not want but would like to carry out his wishes for good or ill. 

I would ideally like the money to go to the grandchildren and think that it is not right to thwart his intentions in that regard, If there was a massive amount of millions I may have thought differently, but it is just possibly a few hundred at the end of the day for the beneficiaries that would get the cash. 

There is a strange clause which I do not know how to operate. 

It states that he kept a savings account specifically for the purposes of giving to his grandchildren. He wanted £5k to paid to each one to purchase premium bonds, that they could only receive when they were 30 and not a day before. It seems like an odd request and NS&I allows the monies to go to the children at 16. Should I pay the cash to the my brother and ask him to sign an undertaking to ensure that his kids do not get the cash until 30 or should I spend money out of the estate setting up some form of trust? I am happy to hold the PB in my name and pass these onto my children when they are 30 but am I in breach of the terms of the will?

The will is not very clear. 

QuimbusFlestrim

I know setting up trusts will take up most of the cash that would go on Premium Bonds so would be a really wasteful use of the estate for no benefit.

QuimbusFlestrim

Also on reading the will, it states that I should purchase a gravestone and pay for flowers every year on his and my mother's grave as I get the bulk of the estate. As I do not get anything, should I pay for the gravestone from the estate prior to distribution as this is part of funeral expenses? This will eat into the estate even more. 

Spendless

I'm sure someone more knowledgeable will be along shortly. AIUI children inherit at 18 (16 in Scotland) unless a specific trust is set up. This sounds more like an expression of wishes.

Are all the children 18+, if they are, they (and the other  beneficiaries) could agree to a DOV (I think) where you could change the amounts - though I doubt the charity would accept less.  

No idea about the headstone, again this might not be able to be enforceable and is just a wish. Hopefully someone else will know. I can't see that you have to keep to buying flowers every year, rather than it being your choice if you do or not. .