Pre-deceased persons and need for retrospective confirmation

Dell2u

So in previous post I mentioned was preparing Grant of Confirmation for Mum who died  in Sept but from advice given by @buddy9 it transpired might first need to obtain this also for Dad who died in Nov'22 (depending on validity of the 'Evacuation of Special' destination that was appended to their wills).  So that opens up new questions for me and I thought I would check if indeed the way their wills written and the Evacuation of Special' destination meant I had to go down this route.

I've pasted below relevant paragraphs from their mirror wills, and  the Evacuation of SD text also. Apologies therefore for lengthy post but wanted to start by checking if we have to apply for confirmation for dad first (will then have more questions Im sure).  Mum and dad were each other executors PLUS brother.    3 beneficiaries are brother plus myself and younger sisters.  

WILL: Property Liferented Legacy: (i)  In the event of [spouse] (hereinafter referred to as ‘the liferenter’) surviving me, I direct the trustees to hold my share in the residential property at the date of my death currently [address] (hereinafter referred to in this clause as ‘’the liferented fund) for the liferent use and enjoyment of the liferenter so long as he or she requires such house for his or her own personal occurpation as to which my trustees shall be the sold judges. (ii) The said liferent shall be alimentary, unless the trustees otherwise resolve, as they are hereby empowered to do at any time before the termination of said liferent in relation to the w hol or any part of the liferented fund (iv) On the failure termination or renunciation in whole or in part of the foregoing liferent, I direct my trustees to make over the liferented fund to my son [name1] and my daughter [name2] and my daughter [name 3], as shall survive the date or dates of vesting equally among them….

Residue: In the event of my spouse [spouse] surviving me for 28 days complete I bequeat the whole residue of my estate to my said spouse.  In the event of the said spouse failing to survive me as aforesaid, I direct the trustees to make over the whole residue of my estate [ 3 residuary beneficiaries named]…..

EVACUATION OF SPECIAL DESTINATION: 

signed by both my parents, dated same as will

We [dad] and [mum] of [address], spouses, heritable proprietors of and residing together at the subjects known as [address] (hereinafter referred to as ‘our home’) considering that the dispositive clause contained within the Disposition granted in our favour and giving us title to our home contains a special destination, represented by a survivorship clause whereby upon the first of us to die we each leave our propriertorship share in our home to the survivor of us, and further considering that for the love, favour and affection which we bestow upon each other and for general estate planning purposes we hereby both wish to evacuate our said special destination as represented by the said survivorship clause and so allow our respective executors upon our respective deaths to deal with our respective property rights of one half share in each of our home, and for no monetary consideration whatsoever, do hereby give notice to each other that by this deed we each irrevocably evacuate for all time coming our respective special destinations as represented by said survivorship clause, and we each hereby consent to the evacuation of the said special destination by our spouse; also, for the avoidance of doubt the said special destination is not to be considered a contractual obligation, as each of us has contributed to the purchase of our home in equal proportions and we hereby certify that this instrument falls within category L in the Schedule to the Stamp Duty (Exempt Instruments) Regulations 1987: IN WITNESS THEREOF……  signed etc.

elsien

Were you trying to reply to a different thread rather than starting a new thread of your own? 

https://forums.moneysavingexpert.com/discussion/4965475/grant-of-confirmation/p81

because if you were wanting to start a new thread, it’s not making a lot of sense as it stands. 
ETA just for info when I posted this the OP consisted of about three words. In case anyone was wondering. 

buddy9

The evacuation of the special destination looks good. Thereater father owned a half pro indiviso share in the house, and did so at the time of his death.

You previously posted that dad left everything to mum. Clearly that is not the case. Dad’s house share was left (conditionally) to his children but subject to a liferent.

Given the removal of the survivorship, I cannot see why you would think that his executor would not be required to apply for a Grant of Confirmation.

Dell2u

Hi @buddy9

Thanks for explaining and confirming.  We will proceed with applying for grant of confirmation for dad.   Few things to check about this Grant of Confirmation for my dad:

- Given that its been several years since my father passed, do we need to inventory the bank accounts/insurance policy (funeral plan) or just the property?  From memory there were 2 joint accounts and possibly one of his own (amounting to only few thousand pounds which bank transferred to mums name). 

- Do we wait for dads grant off confirmation being issued before proceeding with mums (not sure if can submit both at same time)?

- Given that mum has now passed, but was executor along with brother named in dads will, do we only list brothers name in Box 10 of pg 1?

- is following wording OK for box 2 of pg 2: "That I am the executor nominate of the deceased conform to his will dated 19 October 2010 herewith exhibited, docquetted and signed as relative hereto, and that I am the son of the said deceased.  In said will [Mums name] (address), the wife of the said deceased, is also appointed executor nominate but the said [Mums name] died without expeding confirmation.  In said will I am designed as residing at [address], a former address."

- is following entry ok for description of property in Inventory:

Dwelling house at [address] being the subjects described in the Land Register of Scotland under the Title xxxxx
Value estimated by executor
Value of [address] £120,000
Deceased's one half pro indiviso share £60,000

buddy9

The C1 should detail the whole estate.

I supposed the court could find issue with dad’s will or application that could have a knock-on effect on the application for mother’s estate. Perhaps unlikely. Probably a good idea to do then sequentially if that suits you.

Only list brother’s name in Box 10

In pare 2 suggest changing ‘died without expeding confirmation’ to read ‘ died without confirmation being expede’’

Dwelling house description looks ok. It should be the assessed value at date of death

Dell2u

OK we will apply for dads confirmation first...  Thanks for wording suggestions.  Now just need to get figures right in right boxes...

There is a mortgage outstanding on house.  As per previous post, I will put full house value in Inventory description but enter line for half the value for dads share - and use that 50% fig in £ column of inventory.  Is that correct?

Where is outstanding mortgage mentioned - is it only in box 13, where I would put only 50%  of mortgage amount to reflect dads share of this debt? 

I have managed to track down old bank accounts and receipts so  I can list the value as at date of death for most things.  But I see he had an old employers PENSION and was getting small monthly payments which stopped after he died. But from bank statements the pension fund must have paid out a final figure of £1747 after he died to my mum. Do I need to include this £1747 and if so how much information would I need to put in the inventory?  Bank statement says it was paid by Legal and General, and I've found a historic old 'payslip' type document (not from L&G) with the pension number/scheme name on it but no idea if that number would tie up with Legal and General payment.  I guess I'm wondering how much checking would be done for such an item by courts?  

I was just going to put something like:

Personal pension in name of deceased
Legal and General, Rolls-Royce Pension Fund no xxxxx
value at date of death £1747

buddy9

I will put full house value in Inventory description but enter line for half the value for dads share - and use that 50% fig in £ column of inventory.  Is that correct? Yes

Where is outstanding mortgage mentioned - is it only in box 13, where I would put only 50%  of mortgage amount to reflect dads share of this debt.
That would be in line with guidance in form C3

Pension payment doesn't seem to be part of estate therefore not included.

The court only checks the appropriateness of the entries and the wording. There is no deeper checking. And if the estate is well away from IHT thresholds, then HMRC may have little interest.

One area I am unsure about is the status of the liferent, given that there was not a confirmed executor and I assume no action by the trustees to set up the liferent or complete title. While this might not cause a problem overall in disposing of the house, I don’t know what entries would be accurately appropriate for page 5 of each C1 (i.e the IHT related calculation) in this type of scenario.

Dell2u

OK will remove pension entry.

Is there a need to mention existence of 'Evacuation of Special Destination' when referring to the will anywhere?

Im afraid I dont know what you mean when you say 'there was not a confirmed executor'.  But, yes, no action taken by trustees at time of dads death or thereafter to set up the liferent or complete title.

What do you think might be different for these entries on page 5, instead of these mirroring the totals  from  page 4 boxes 11/15?  

Is this related to when you said that father’s share of the house did not pass to my mother, but was held in trust for the beneficiaries as stated in his will (ie mother given a liferent).  So the inventory for my mother should include her share of the house and not the whole house, though the whole house value is included in totals used for IHT calculations?  Or is still only half value of house included for IHT as mum didnt inherit dads half?

buddy9

The evacuation is not referenced in the C1.

A confirmed executor is an executor who has been issued with Confirmation and thereby has legal title to intromit with the estate of the deceased.

The inventory for your mother should include her share of the house and not the whole house.

My understanding of the IHT position (page 5) is:

Liferent

Liferent value is treated as having spouse exemption on the first death (if married), and on the second death liferent value added to estate for iht calculation.

Father’s C1.  NQV (box 25) = net value (box 24) minus (liferent share value plus value of residue to mother). Perhaps NQV would be zero (assuming legal rights (legitim) were renounced by children).

Mother’s C1. The value of the share of the house subject to liferent is added to the gross estate for IHT so box 23 value is greater than box 11 value.

No Liferent

Father’s C1.  NQV = net value (box 24) minus residue value left to mother.

Mother’s C1. Box 23 equals box 11, box 24 equals box 25.