Appointing representatives for under-18 beneficiaries of a will

Robbo33

Any advice very welcome - thank you in advance.

• My late Dad's will names 8 beneficiaries.
• His 3 children, of which I am one - also executors
• His 5 grandchildren, all U18
• His will does not name / specifiy trustees, for the 5 x under-18 beneficiaries
• In order to distribute the estate, and put the grandchildren's share into Junior ISAs as per Dad's wishes, we have been told that we need a court order to appoint representative/trustee for the U18 beneficiaries, and that the appointed trustee will then have legal guardianship of the child in question! 
• I understand that my siblings and I can't be trustees as we are also beneficiaries, so conflict of interest. My siblings' ex-spouses cannot be trustees due to breakdown in communication.
• What is the law on appointing trustees in these circumstances? Does it really have to be done by the court, with the resulting trustee having legal guardianship?
• For info - the vast majority of the estate is in the house. The house is being 'bought' by my sister (executor and beneficiary). Her share of the equity will remain in the house and be topped-up by mortgage, and the remaining equity will be split between the remaining 7 beneficiaries as per Dad's request.

Can anyone clarify this and explain why we, as executors, cannot appoint representatives for our children? Why we have to have court orders which gives people legal guardianship of our children?!  So confused. All we want to do is set up junior ISAs for each grandchild and their share be to transferred into their JISA, not to be touched until they're 18. This is Dad's wishes, stated in his will. 

Thanks

mebu60

Who told you you needed a court order? 

As executor I have distributed funds to U18s via a parent (who were also executors and beneficiaries themselves). 

Flugelhorn

That doesn't sound right - this happens quite often and usually it is left to the child's parent to manage it (even if they are also beneificiary and executor) 

Robbo33

Thanks for your responses so far. A solicitor who is advising my sister told her that a court order is needed. It really doesn't sound right! I am currently trying to get some FOC info from a solicitor online....

Keep_pedalling

Who are the executors? Why has your sister consulted a solicitor?

mebu60

Robbo33 said:

Thanks for your responses so far. A solicitor who is advising my sister told her that a court order is needed. It really doesn't sound right! I am currently trying to get some FOC info from a solicitor online....

Why is your sister being advised by a solicitor other than for the conveyancing aspects? (assuming she's the sister buying the house). And what questions did she ask the get this 'advice'? And what are they charging her for it!! 

As above, this is not an unusual scenario, I am not aware of it ever requiring court orders when there are parents who can fulfil the obligations. 

Robbo33

Keep_pedalling said:

Who are the executors? Why has your sister consulted a solicitor?

Executors are me, my brother and my sister. She needs a solicitor to do the transfer of equity (not quite conveyancing as it's not a traditional 'sale', but similar. She will then own the house.

Robbo33

@mebu60Goodness knows what she asked to get those answers. And no idea what they're charging - I don't think she's actually instructed them yet, just getting advice. Duff advice that's holding everything up!!  Since I started this thread I have consulted a solicitor on 'just answer' for some clarity, and he confirmed that an adult who is executor, beneficiary and the parent of the child in question, can indeed be trustee for said child, no need for court to intervene in the situation, and no conflict of interest as long as trustees are even-handed in their dealings. So thank you so much everyone, i appreciate your input - looks like we have the answer

Keep_pedalling

As the solicitor is only acting as a conveyancer for the purchase of the house, just ignore what they are (wrongly) advising. 

elsien

Yes, that whole legal guardianship aspect of the answer was just bizarre.

poseidon1

Robbo33 said:

Any advice very welcome - thank you in advance.

• My late Dad's will names 8 beneficiaries.
• His 3 children, of which I am one - also executors
• His 5 grandchildren, all U18
• His will does not name / specifiy trustees, for the 5 x under-18 beneficiaries
• In order to distribute the estate, and put the grandchildren's share into Junior ISAs as per Dad's wishes, we have been told that we need a court order to appoint representative/trustee for the U18 beneficiaries, and that the appointed trustee will then have legal guardianship of the child in question! 
• I understand that my siblings and I can't be trustees as we are also beneficiaries, so conflict of interest. My siblings' ex-spouses cannot be trustees due to breakdown in communication.
• What is the law on appointing trustees in these circumstances? Does it really have to be done by the court, with the resulting trustee having legal guardianship?
• For info - the vast majority of the estate is in the house. The house is being 'bought' by my sister (executor and beneficiary). Her share of the equity will remain in the house and be topped-up by mortgage, and the remaining equity will be split between the remaining 7 beneficiaries as per Dad's request.

Can anyone clarify this and explain why we, as executors, cannot appoint representatives for our children? Why we have to have court orders which gives people legal guardianship of our children?!  So confused. All we want to do is set up junior ISAs for each grandchild and their share be to transferred into their JISA, not to be touched until they're 18. This is Dad's wishes, stated in his will. 

Thanks

I think I might see the problem here.

I am guessing your father left the house to all 8 beneficiaries, but without making the gift a 'trust for sale' ie beneficiaries entitled to proceeds of sale rather than a beneficial entitlement to the property itself.

This would not ordinarily cause a problem, except 5 of the 8 are minors and one of the adults wants  to buy each of their 1/8th shares. The minors are not legally competent ( as minors ) to consent to their shares being sold to one of the adult beneficiaries, and it is additionally unhelpful that the adult concerned is also an executor so there is an aspect of executor self dealing, which again the minor beneficiaries cannot themselves legally waive.

 Needless to say, the parents of the children do not have the Independent legal standing to approve the disposal of their children's interest in the property since it apprears none were appointed as trustees on their behalf , which clearly was an option had the testator been properly advised when the will was prepared. 

The way to look at this from a conveyancing point of view, is 7 people are   'selling' their interest in the property but 5 of them are ( by themselves ) legally unable to enter into the contract without a 'guardian ad litem' acting as the appointed trustee on their  behalf with the power to give a good receipt for their respective shares of the property proceeds. I believe this is  maybe what the solictor is actually referring to rather than full blown guardianship over all matters pertaining to the children's welfare.

As it happens there appears to be  very recent case law that bears on the issue - see trust discussion below

https://trustsdiscussionforum.co.uk/t/court-jurisdiction-over-protection-of-minors-property/13117

The case of   Re (A child ) (Rev1 ) 2020 EWFC 90   mentioned in that forum, does seem to be on point here so an application to the court ( Family division) either by the respective parents or a single appointed guardian ad litem trustee,  for a judge to approve the sale on behalf of the children,  does  seem to be  what's required  to get this transaction over the line. However bear in mind in those court proceedings the mother agreed to meet the court costs from her share of the sale proceeds. I suspect the court would have an issue with costs being met from the children's share in this instance.

For completeness it seems there would be a similar outcome had it been instead an arms length sale to an outsider rather than family.

If anybody believes this to be a bit OTT for what could be a relatively modest amount, then take on board that the total  proceeds of sale in  the Re  (A child ) case was only £220,000 with the child entitled to just 25% of that sum. 

 All in all this seems to turn on  fundamental issues of trust and land  law ( as it pertains to minors) and   resulting  from an apparently carelessly drafted will. A pity the solicitor was not able to explain the issues in a satisfactory matter, or that the father had not been properly advised when drafting the will.

This should be a cautionary tale for those intent on leaving real estate to minor children without inserting appropriate trustee powers and provisions on their behalf.