Issue with the Will (not good!)

tls123

I wouldn’t be sure OP is receiving the correct legal advice her other threads mentions a legal services company, which has quoted a very high figure for administering the estate/ probate and a Google search reveals quite a number of warnings by bereaved families about their mistakes, lack of communication and general mismanagement. 

mattojgb

Lilio8 said

The 3 of us have been left with a specific sum.  As I understand, the residual estate is gifted to the 3 of us once I'll be done with paying all that needs to be paid (tax, debts, bills, legacies, etc..).

If this is the case then there is no intestacy. Everything not specifically allocated forms part of the residual estate.

Newly_retired

Without us seeing the actual wording of the will it is hard to understand the situation and how you  and your solicitor arrived at your conclusion.

Lilio8

doodling said:

Hi,

The question that is not being answered is "Why does the portion of the estate that you state is "not available" not fall into the residual estate"?

Usually wills are constructed along the lines of:

I give X to A
I give Y to B
I give Z to C
Everything else is given to G, H and J in these proportions. (This is the residual estate - the bit left after specific legacies have been dealt with).

It is very unusual to end up with a situation where something doesn't fall into the "everything else" clause.

You say you have had legal advice, so we must take your word for it that you understand how this has happened but looking in from the outside, without the benefit of the detail, it looks very odd.

I do not know if that 50% not allocated to A,B or C if it is the 'Residual' or simply 'No Will' for that portion. If it's Residual then it is to go to (A, B & C)/3.

I'm waiting to hear from the solicitors if it's a 'No Will' situation of that part or it is a 'Residual', because I do not know what's what.

RAS

Do you not have a copy of the will?

You could, but don't have to, post the wording here, using A,B and C, and we may be able to help you at least formulate your questions.

In this situation, not suggesting you don't take legal advice, but it's not unusual for people to struggle to understand unless they know the basic terminology. We can help there.

Grumpy_chap

Lilio8 said:

doodling said:

Hi,

The question that is not being answered is "Why does the portion of the estate that you state is "not available" not fall into the residual estate"?

Usually wills are constructed along the lines of:

I give X to A
I give Y to B
I give Z to C
Everything else is given to G, H and J in these proportions. (This is the residual estate - the bit left after specific legacies have been dealt with).

It is very unusual to end up with a situation where something doesn't fall into the "everything else" clause.

You say you have had legal advice, so we must take your word for it that you understand how this has happened but looking in from the outside, without the benefit of the detail, it looks very odd.

I do not know if that 50% not allocated to A,B or C if it is the 'Residual' or simply 'No Will' for that portion. If it's Residual then it is to go to (A, B & C)/3.

I'm waiting to hear from the solicitors if it's a 'No Will' situation of that part or it is a 'Residual', because I do not know what's what.

The think is, it is quite unusual for a Will drafted by Solicitors (which you indicated was the case here) to have an element that results in "No Will" (intestate portion).  Most professionally drafted Wills have cover for the eventuality of a Beneficiary pre-deceasing to avoid this situation arising.  It would be even more odd that a Will somehow only covered X% of the Estate but leaves the final Y% intestate.

It does seem as though the Solicitors with whom you are dealing have possibly created confusion to increase their work and fee.

What was initially in the Will that left you requiring a Solicitor in the first place?

Lilio8

Grumpy_chap said:

Lilio8 said:

doodling said:

Hi,

The question that is not being answered is "Why does the portion of the estate that you state is "not available" not fall into the residual estate"?

Usually wills are constructed along the lines of:

I give X to A
I give Y to B
I give Z to C
Everything else is given to G, H and J in these proportions. (This is the residual estate - the bit left after specific legacies have been dealt with).

It is very unusual to end up with a situation where something doesn't fall into the "everything else" clause.

You say you have had legal advice, so we must take your word for it that you understand how this has happened but looking in from the outside, without the benefit of the detail, it looks very odd.

I do not know if that 50% not allocated to A,B or C if it is the 'Residual' or simply 'No Will' for that portion. If it's Residual then it is to go to (A, B & C)/3.

I'm waiting to hear from the solicitors if it's a 'No Will' situation of that part or it is a 'Residual', because I do not know what's what.

The think is, it is quite unusual for a Will drafted by Solicitors (which you indicated was the case here) to have an element that results in "No Will" (intestate portion).  Most professionally drafted Wills have cover for the eventuality of a Beneficiary pre-deceasing to avoid this situation arising.  It would be even more odd that a Will somehow only covered X% of the Estate but leaves the final Y% intestate.

It does seem as though the Solicitors with whom you are dealing have possibly created confusion to increase their work and fee.

What was initially in the Will that left you requiring a Solicitor in the first place?

Thank you for your reply.

>What was initially in the Will that left you requiring a Solicitor in the first place?

The fact that a) it is the first time that I'm an Executor and it all happened quite quickly (my dearest friend didn't think quite believe what was happening   ) ; b) there are other two beneficiaries, two siblings, one of whom took the Will and a letter that was written to me, and for me, and started making his own plans about the content, the chattels, that had been given to me in the first place; c) we didn't make it to get married, it was too late, I needed to figure out what to do.

Lilio8

Grumpy_chap said:

Lilio8 said:

Thank you for your reply.

'Why do you think it should come from your share alone?'  The maths has it that without a portion of the estate available, I'll be missing a few £££££s. And the only way, that I'm aware of, to pay the beneficiaries is to use some of my inheritance.

'Are you the sole residual beneficiary or have you been left a specific sum? Have the blood relatives been left a specific amount or are they residual beneficiaries?'

The 3 of us have been left with a specific sum.  As I understand, the residual estate is gifted to the 3 of us once I'll be done with paying all that needs to be paid (tax, debts, bills, legacies, etc..).

Lilio8 said:

my solicitors pointed out about an ambiguity, an error
The error consists in a portion of the assets not been allocated to anyone. This will mean that this portion will be 'intestate' and I will not be able to use it since it'll go to a beneficiary.  This translates for me to a big hole of several £thousands that I will need to fill in somehow!

This thread still seems to have some apparent gaps in the completeness of information shared.
It seems odd that the OP has a Solicitor assisting them with the administration of the Estate and yet the queries have not been concisely advised on by the Solicitor.

I understand the OP's comment about not wanting to give all the details of the Will, but some more details will be required before the situation can be fully clarified.

The process is that the Estate pays funeral first, then debts and taxes.  If the Estate is subject to IHT, the IHT is paid before anything is assessed for distribution - debts and taxes do not fall on just one Beneficiary to pay.

OP - can you clarify some further information please?

1. How large is the Estate?  Is IHT definitely due?  
2. Was the property mentioned upthread with a value of £300k the deceased home?  (PPR = Principal Private Residence)
3. What is the unallocated portion that is to be considered as "intestate" and why is this portion not part of the Residual Estate?  (Obviously, it sounds as though the Residual Estate is NIL in this case.
4. For the three Beneficiaries, have they simply been left fixed sums?  £X to Beneficiary 1, £Y to Beneficiary 2, £Z to Beneficiary 3 (OP)?
5. OR, are the sources of the funds for the Beneficiaries identified?  £X from sale of house to Beneficiary 1, £Y from sale of house to Beneficiary 2, £Z (unspecified) to Beneficiary 3 (OP)?
6. What are the relationships between the deceased and the Beneficiaries?  Is this Beneficiary 1 and 2 are the children of the deceased and Beneficiary 3 (OP) is the new partner of the deceased?

This article gives some guidance on what happens when the Estate is too small to meet all stated gifts:
https://www.gnlaw.co.uk/news/what-rights-does-a-beneficiary-of-a-will-have/

Information on order to make payment is here (item 3):
https://www.moneyhelper.org.uk/en/family-and-care/death-and-bereavement/dealing-with-the-debts-of-someone-who-has-died#
 

Thank you for your reply. Sorry for the delay in mine. It's all quite overwhelming at times. There are days when I think that I have it all under control and others when unexpected turns crop up.

You say "The process is that the Estate pays funeral first, then debts and taxes.  If the Estate is subject to IHT, the IHT is paid before anything is assessed for distribution - debts and taxes do not fall on just one Beneficiary to pay."

Yes, I get that the Estate pays funeral first, then debts and taxes if it is subject to IHT, which is paid prior to the distribution of assets.   I didn't know that debts and taxes do not fall on just one Beneficiary to pay; I thought that I am the sole responsible for paying debts & taxes since I'm the executor.

In answer to your questions:"

N.B.: Funeral has already been paid. The bank was very helpful and paid it in full prior to freezing the account when I informed them that he had passed away.

1. Yes, I believe that IHT will be due. It's just over £500k (including shares in an ISA, Fund&Shares, small amount in a Sipp, some cash in the bank and the rest once the house will be sold).

2. Yes, it was the principal residence.

3. 1/2 of the share ISA. The Will doesn't mention what to do with the other 1/2. I've no idea why.

4. Beneficiary 1 has been left a £sum + shares; beneficiary 2 only cash; beneficiary 3 (me) cash+1/2 ISA+chattels.

5. It is all very clear in the letters and notes he left to me who receives what (not sure that the solicitors would want to read them since they're typewritten, without his signature (damn!), they're digital files I found on his computer. The Will seems to be unclear as to what beneficiary 1 actually receives in terms of shares (the amount of £cash for beneficiary 1 is clear).

6. There are no children. Beneficiaries 1 & 2 are siblings (parents died). Beneficiary 3 (me) and the deceased have been dear friends for many years, some 15 or so years. He hadn't kept in contact with his family for many years, a family dispute of some sort. Unfortunately when he asked me to marry him it was too late , it was hospital & hospice, lots to do and try to grieve in piece and quiet.

I know for sure that the other 1/2 of the ISA was intended for IHT. We had scribbled notes, on one of the last times we met up. He scribbled a little mind map as to what portion was going to whom or what for. But not sure that the solicitors will take notice of that. I could scan it and email it to them.

Lilio8

Keep_pedalling said:

Lilio8 said:

Keep_pedalling said:

Lilio8 said:

doodling said:

Hi,

As has been said, we would need to see the wording to make detailed comments but usually assets that are not specifically allocated go to the residual beneficiaries.

It is quite unusual for a will to have no residual beneficiaries, or to be constructed in such a way that some assets cannot pass to them.

From what you have said about costs, it sounds like you are a (the only?) residual beneficiary - is that the case?

If the other beneficiaries are bequeathed a specific amount (or a specific asset) then they don't need to know about this unless there is a risk that there is insufficient funds to meet their bequests (after costs and IHT which are deducted first).

Thank you for your reply.

I think that I'll have just enough left over to distribute to the 2 blood related beneficiaries (I'm the non-blood related beneficiary) after paying IHT and the sale of the property. But I'll probably have to take it out of my inheritance and I'm assuming that the house will not sell below £300k.

Why do you think it should come from your share alone? Are you the sole residual beneficiary or have you been left a specific sum? Have the blood relatives been left a specific amount or are they residual beneficiaries?

Thank you for your reply.

'Why do you think it should come from your share alone?'  The maths has it that without a portion of the estate available, I'll be missing a few £££££s. And the only way, that I'm aware of, to pay the beneficiaries is to use some of my inheritance.

'Are you the sole residual beneficiary or have you been left a specific sum? Have the blood relatives been left a specific amount or are they residual beneficiaries?'

The 3 of us have been left with a specific sum.  As I understand, the residual estate is gifted to the 3 of us once I'll be done with paying all that needs to be paid (tax, debts, bills, legacies, etc..).

I am really struggling with what you mean by a portion of the estate being unavailable. If it has not been specifically willed to anyone it forms part of the residual estate. 

Sorry, I'm a little late in replying. Perhaps my reply to Grumpy_Chap might assist. I hope the you're right, that it forms part of the residual estate. I'm tempted to contact the solicitors who drafted the Will. I'm still waiting for an answer from mine. I'll email tomorrow to find out.

Grumpy_chap

Lilio8 said:

Thank you for your reply.

>What was initially in the Will that left you requiring a Solicitor in the first place?

The fact that a) it is the first time that I'm an Executor and it all happened quite quickly (my dearest friend didn't think quite believe what was happening   ) ; b) there are other two beneficiaries, two siblings, one of whom took the Will and a letter that was written to me, and for me, and started making his own plans about the content, the chattels, that had been given to me in the first place; c) we didn't make it to get married, it was too late, I needed to figure out what to do.

It is understandable that you find this all a bit overwhelming at times - you are dealing with your own grief plus the responsibility of Executor for the Estate.

Do you now have the Will and the letters?  Have you secured all property of the Estate so that the other Beneficiary (whom I assume is not a joint Executor) cannot distribute contrary to the Will.

Are you the sole Executor?

Lilio8 said:

Yes, I get that the Estate pays funeral first, then debts and taxes if it is subject to IHT, which is paid prior to the distribution of assets.   I didn't know that debts and taxes do not fall on just one Beneficiary to pay; I thought that I am the sole responsible for paying debts & taxes since I'm the executor.

As Executor, you are responsible for ensuring that the funeral, debts and taxes are paid and that the Estate is distributed in accordance with the Will.

It happens in that order.  It means that the funeral, debts and taxes do not reduce just one Beneficiary's share of the Residual Estate, but reduces the Residual Estate in total before it is distributed to the Beneficiaries in the proportion set out in the Will.

Lilio8 said:

5. It is all very clear in the letters and notes he left to me who receives what (not sure that the solicitors would want to read them since they're typewritten, without his signature (damn!), they're digital files I found on his computer. The Will seems to be unclear as to what beneficiary 1 actually receives in terms of shares (the amount of £cash for beneficiary 1 is clear).

I know for sure that the other 1/2 of the ISA was intended for IHT. We had scribbled notes, on one of the last times we met up. He scribbled a little mind map as to what portion was going to whom or what for. But not sure that the solicitors will take notice of that. I could scan it and email it to them.

The Will is the principal document that must be followed.  It has legal significance.

Any other letters or notes may help in guiding the Executor but cannot conflict with the Will (or do not over-ride the Will if there is a conflict).

Lilio8 said:

3. 1/2 of the share ISA. The Will doesn't mention what to do with the other 1/2. I've no idea why.

4. Beneficiary 1 has been left a £sum + shares; beneficiary 2 only cash; beneficiary 3 (me) cash+1/2 ISA+chattels.

I know for sure that the other 1/2 of the ISA was intended for IHT. 

So, the 1/2 value of the ISA is identified as for yourself.

The other half value of the ISA is not identified to a specific Beneficiary and therefore becomes part of the Residual Estate.

The Residual Estate is the part that is used to fund funeral, debts, IHT before the specified items are impacted.  In that sense, the half-ISA that was intended for IHT will be used for IHT.

There are items that are specified for the three Beneficiaries and everything else is Residual Estate.  Does the Will have a clause that deals with the Residual Estate.  It may be in very general terms.

It still remains unclear as to why the Solicitor you spoke with thought that some parts of the Estate (the 1/2 ISA?) was subject to Intestacy rules rather than falling into the Residual Estate.

I note you have said upthread you do not wish to share the actual wording of the Will (redacted to omit personal details).  It may be difficult for members of the forum to give much more advice in the absence of that.

Is the Will actually complicated and protracted? Perhaps you can clarify how long the Will is?

A Will can sometimes seem far more complicated than it really is because of the use of legal jargon.  It is likely there are members of the forum that can advise on the lay-person meaning of any legal jargon that has been used.