Complicated will

AgentMoo

Hi all, 
My father passed away recently leaving a will. However, I am now trying to sort out probate and the will was not updated. 

In the will two named properties were left to his wife. However, since that will was made he had sold the properties and moved into one property, owning it solely. 

The provision in the will was for the named properties to be given free of tax to his wife and any residue left to his two children.

Now that the single property is in his name only, does it still automatically pass to the surviving spouse or is it split 3 ways?

I sent off the probate but they came back to say I have not claimed unused nil rate band.
Can someone explain this?

The property is worth £250,000 and the estate other than property is worth £235,000

poppystar

The ‘unused nil rate band’ would usually refer to a deceased spouse’s allowance but I read from your post that she is still alive. So how much you can claim will depend on how much of the estate is being left to the spouse and how much to the children - which takes you back to the issue with the properties in the Will and the interpretation of what will happen now the property bequests to the wife have failed. 

It doesn’t sound like anything is now left to the wife but I’m sure others will be along to clarify that. It might help if you can post the main body of the Will with all personal details redacted. 

sheslookinhot

My simplistic view is that the wife inherits the property.

Linton

AgentMoo said:

Hi all, 
My father passed away recently leaving a will. However, I am now trying to sort out probate and the will was not updated. 

In the will two named properties were left to his wife. However, since that will was made he had sold the properties and moved into one property, owning it solely. 

The provision in the will was for the named properties to be given free of tax to his wife and any residue left to his two children.

Now that the single property is in his name only, does it still automatically pass to the surviving spouse or is it split 3 ways?

I sent off the probate but they came back to say I have not claimed unused nil rate band.
Can someone explain this?

The property is worth £250,000 and the estate other than property is worth £235,000

I am afraid if a named property is not owned by the testator on death the bequest simply fails.

The single property, wwhich I understand is not mentioned in the will but was entirely owned by the testator, is included in the residue so it would appear his wife gets nothing.  The executor has no authority to do anything different.

However the residual beneficiaries can agree a Deed of Variation to change the terms of the will to make provision for the surviving spouse. Also, the will could. be challenged in the courts on the grounds that it did not provide sufficiently for a dependant. 

p00hsticks

sheslookinhot said:

My simplistic view is that the wife inherits the property.

My view is that she doesn't. The properties she is left in the will don't form part of the estate as they were sold before the testator died, so that part of the will fails. TH new property was only in his name so she cannot succeed him as she would if they had both been named on the deed as joint tenants. 

Unless there are other parts to the will not mentioned here, then the entire estate, including the property, goes t o the two children as residual beneficiaries. 

We sometimes mention on this board that it is not usually a good idea to specify particular properties on wills, and unfortunately this appears to be an example of why that is the case. 

Cairnpapple

Was your father a widower when he married his wife?

AgentMoo

Cairnpapple said:

Was your father a widower when he married his wife?

Bo he only married my mother

AgentMoo

This may be a bit clearer. 

poppystar

Ok so AIUI….

the gifts of the two houses to the wife fails

therefore all the estate is residual

the wife appears from the Will to be one of the residual beneficiaries 

so IHT would be payable on the remainder of the residual pot that does not go to the wife if that portion exceeds the £325k NRB of father

given that this includes the current house then then you should be able to claim residential NRB based on the value of the property and the percentage being left to the children as direct descendants. 

As mentioned earlier in the thread the children can choose to do a Deed of Variation to the wife if the Will would leave her homeless and struggling.

You need to work out the values of each portion. If you then need to claim RNRB for father you would need to do a full IHT return before Probate can be granted. It does sound like the Probate Office’s reading of the Will thinks that the estate is over father’s NRB. When you have the figures it might be worth attempting to speak to someone there to agree the next step. Clearly at the moment they seem under the impression that his wife is no longer alive.

RAS

Someone should probably explain to the wife that she can make a claim under the Inheritance Act, which might succeed. That needs to be done within 6 months of the grant of probate.

The other issue everyone needs to be aware of is that if any of the beneficiaries are on mean-tested benefits, they cannot renounce their inheritance under this badly written will. 

poppystar

I am amazed that this Will was draw up by a solicitor who honestly should have been able to foresee the problem and warn father that a new Will would be needed should the properties be sold. It’s not like the Will was drawn up a very long time ago, I’d have expected there to have been a discussion on the possibility of the current pitfall happening.