Mirror Wills or Mutual Wills

Flugelhorn

mattojgb said:

Keep_pedalling said:

I agree about the trust, I don’t think one has been created but legal advice needs to be sort especially once charities have visibility of the will they are more likely to pursue it than the her partners children.

I'm inclined to think that a valid trust has been created and even if the will is considered not to name a trustee then the executors will become the trustees. The power vested in the trustee seems quite clear but op will have to assume the responsibilities of acting as trustee.

In terms of executing a deed of variation, the presence of the charity does complicate things. They may be prepared to accept a legacy now rather than wait, and, if there are assets to cover such, it may be possible to set up a standard IPDI trust on the deceased's half of the house for the benefit of the children.

Good point re charity - they may accept a fixed sum now rather than the potential for zero (if OP spends everything) in 20 years time

critchley

Flugelhorn said:

mattojgb said:

Keep_pedalling said:

I agree about the trust, I don’t think one has been created but legal advice needs to be sort especially once charities have visibility of the will they are more likely to pursue it than the her partners children.

I'm inclined to think that a valid trust has been created and even if the will is considered not to name a trustee then the executors will become the trustees. The power vested in the trustee seems quite clear but op will have to assume the responsibilities of acting as trustee.

In terms of executing a deed of variation, the presence of the charity does complicate things. They may be prepared to accept a legacy now rather than wait, and, if there are assets to cover such, it may be possible to set up a standard IPDI trust on the deceased's half of the house for the benefit of the children.

Good point re charity - they may accept a fixed sum now rather than the potential for zero (if OP spends everything) in 20 years time

I'd have to get a move on as being as I'm 80 the beneficiaries wouldn't have long to wait!  It gets worse every time I delve into things.  It appears from the old documents I found that I wasn't even a co-owner of the property!  He was the sole proprietor after he remortgaged to buy the flat downstairs. (there was just a clause saying he couldn't dispose of the property without my consent) So even if I do get it under the Will, which is dubious to say the least, I can't claim half because I wasn't a co-owner !  So looks like I'd have to pay inheritance tax on all of it as I won't be the owner until after Probate (I'm assuming) and will have to pay Inheritance tax of something like £104,000!!  Where do I get that kind of money from at my age?  Sorry to be dramatic but I'm so upset by it all I could opt out if you know what I mean.

FlorayG

critchley said:

Flugelhorn said:

mattojgb said:

Keep_pedalling said:

I agree about the trust, I don’t think one has been created but legal advice needs to be sort especially once charities have visibility of the will they are more likely to pursue it than the her partners children.

I'm inclined to think that a valid trust has been created and even if the will is considered not to name a trustee then the executors will become the trustees. The power vested in the trustee seems quite clear but op will have to assume the responsibilities of acting as trustee.

In terms of executing a deed of variation, the presence of the charity does complicate things. They may be prepared to accept a legacy now rather than wait, and, if there are assets to cover such, it may be possible to set up a standard IPDI trust on the deceased's half of the house for the benefit of the children.

Good point re charity - they may accept a fixed sum now rather than the potential for zero (if OP spends everything) in 20 years time

I'd have to get a move on as being as I'm 80 the beneficiaries wouldn't have long to wait!  It gets worse every time I delve into things.  It appears from the old documents I found that I wasn't even a co-owner of the property!  He was the sole proprietor after he remortgaged to buy the flat downstairs. (there was just a clause saying he couldn't dispose of the property without my consent) So even if I do get it under the Will, which is dubious to say the least, I can't claim half because I wasn't a co-owner !  So looks like I'd have to pay inheritance tax on all of it as I won't be the owner until after Probate (I'm assuming) and will have to pay Inheritance tax of something like £104,000!!  Where do I get that kind of money from at my age?  Sorry to be dramatic but I'm so upset by it all I could opt out if you know what I mean.

Really don't panic - first of all, what documents are these?The ones you want are the Land Registry ones, they have the final and definitive answer to who owns a property. If you don't have those you can get them for a very small fee, just a few ££. If you were originally co-owner he could not have taken you off the ownership without your consent. This is something you really, really need to establish. Again, if you are named on the Land Registry documents as joint tenants then the house is now yours and if you were tenants in common a proportion of it is yours
Secondly, YOU don't pay any inheritance tax on this. This amount comes out of your partners estate, so doesn't have to be paid until after probate when the money is available. Nobody will chase you for the money, it's the estates responsibility. Are you named as the executor of the will? If nobody is named then legally his son should be executor as his nearest relative, but if the son doesn't want to do it you can be appointed if you want

mattojgb

Is the flat downstairs the other property your partner owned that you originally referred to? Was the mortgage ever in joint names? It would be unusual nowadays for a property and a mortgage to be in different names, (i.e. if the mortgage is in a single name so is the ownership and similarly for joint) but that wasn't always the case. What made you think it was jointly owned? The not being able to dispose without consent clause is typical of properties owned as tenants in common - presuming there are in fact two owners.

Flugelhorn

I agree with  @mattojgb the consent clause is usually when a property is owned as tenants in common.

get the land registry details downloads - I think the last time I looked it was about £3 

Keep_pedalling

You are not responsable for paying IHT the estate is. Please take legal advice as a matter of urgency. If your worse fears that the will is invalid are true (and I think that is probable not correct, then you need to know as soon as possible. If it is invalid then you don’t need to do anything as you won’t be the executor so you can leave that to others. If it is valid then you can opt to pay IHT in instalments which means you only need to find 10% for the first instalment. The rest can be paid once you have sold the downstairs flat.

Savvy_Sue

Flugelhorn said:

I agree with  @mattojgb the consent clause is usually when a property is owned as tenants in common.

get the land registry details downloads - I think the last time I looked it was about £3 

And be aware (and don't panic) that you can't always download the documents over the weekend / outside working hours. That may have changed: I think it was an anti-fraud measure, so if there was a problem they were likely to spot it quickly. 

critchley

I downloaded copies of the Title Register in 2022 (I paid for it) and it says that that the Proprietors are him and me.  This is what made me think that we were tenenat's in common because there was also a clause that said "RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court" which was the way I found out that we were tenants in common and not joint tenants.  They weren't dated but could have been when my partner moved in with me and bought a share in the property after we'd been living together for a while.  Probably in the 80s.  We'd been together for 40 years.

But then we had his old briefcase out today and there was a formal looking copy of the Completion of Registration which clearly states that only he is the Registered Proprietor and the only mention of me is in a small clause that says RESTRICTION: Except under an order of the registrar no disposition by the proprietor of the land is to be registered without the consent of XXX XXXX (me) of (address).  It's dated 27th April 2004.

I presume the one on official paper might have been when he remortgaged this property in order to buy the downstairs flat.  It was all done very quickly but it's a long story how we managed to secure the other flat for half it's value.  It had belonged to my mum and her husband (who had raised money on it by selling it for half it's value with a lease for life) and we just didn't want to have strangers living there.  We tried to inform the person who had bought it but no trace of her.  After nearly 2 years I finally found out that she had died owing the investment money to  a bank who agreed to sell it to us for what she owed them)  I don't seem to have the original conveyancing deeds for either flat.   

I think it's pretty clear that because he remortgaged this flat in his own name I got knocked out of it!  So it's all looking a bit bleak I think you'll agree.

bobster2

critchley said:

I think it's pretty clear that because he remortgaged this flat in his own name I got knocked out of it!  So it's all looking a bit bleak I think you'll agree.

But the most recent version of the title you've seen (2022) says you are tenants in common. 

critchley

Keep_pedalling said:

You are not responsable for paying IHT the estate is. Please take legal advice as a matter of urgency. If your worse fears that the will is invalid are true (and I think that is probable not correct, then you need to know as soon as possible. If it is invalid then you don’t need to do anything as you won’t be the executor so you can leave that to others. If it is valid then you can opt to pay IHT in instalments which means you only need to find 10% for the first instalment. The rest can be paid once you have sold the downstairs flat.

But it says that IHT has to be paid before you can get a grant of Probate.  

And yes FlorayG I am the Executor along with his sister who has just spent a whole year dealing with her other brother's estate and said she doesn't want to get involved and will sign a form to say this.  Can't say I blame her, she's had a nightmare trying to sell his property and being let down over and over.  My Partner hasn't had any contact with his children for many years and deliberately left what I thought was anything that was left after my death or if I predeceased him between my son and grandson and several charities but I accidentally referred to it as the Trust Fund ... duh.