I am an executor, if I die can I leave those duties to my sister

optimist?

I am the sole executor for my Mother who died in 2020, to dispose of her estate and look after my brother who has continued to live in the family home since then - he is ESN and difficult to deal with. Under the terms of her WIll if he cannot look after the property then it must be sold and the proceeds divided between him, my sister and myself. He cannot look after the property which is becoming neglected and ramshackle, and has said he wants a flat instead of the resposnibility of a house and garden. We have done a great deal to clear up the problem of the property but there is much still left to be done before we can reach the point of sale. My problem is that I am aging rapidly and not in the best of health and am concerned that I cannot see this process through to completion. If anything happens to me can I leave the duties of the executor to my sister, who is the next oldest and a responsible person who will have his best interests at heart?

user1977

Yes, of course. And if your sister is your executor, that's what would happen by default anyway.

Keep_pedalling

Did your mother’s will leave your brother a life interest in the home which would have created an immediate post death interest trust? If so then this is the responsability of the trustees rather than the executor so it would be worth make your sister a trustee. 

poseidon1

optimist? said:

I am the sole executor for my Mother who died in 2020, to dispose of her estate and look after my brother who has continued to live in the family home since then - he is ESN and difficult to deal with. Under the terms of her WIll if he cannot look after the property then it must be sold and the proceeds divided between him, my sister and myself. He cannot look after the property which is becoming neglected and ramshackle, and has said he wants a flat instead of the resposnibility of a house and garden. We have done a great deal to clear up the problem of the property but there is much still left to be done before we can reach the point of sale. My problem is that I am aging rapidly and not in the best of health and am concerned that I cannot see this process through to completion. If anything happens to me can I leave the duties of the executor to my sister, who is the next oldest and a responsible person who will have his best interests at heart?

If your mother's death occurred back in 2020, your executorship is likely over, and you are now de facto trustee of the house trust for your brother.

As such, you should now be registering the trust on HMRC's trust register ( sooner rather than later).

As to formal recognition of your trusteeship, has the property title been transferred to you?

Whether or not that has occurred,  assuming your sister is willing to do so you should appoint her as Co trustee to act along side you in administering the trust. You will likely need a solicitor to draw up an appropriate deed of trustee appointment on your behalf.  With your sister on board as trustee, she continues in that capacity in the event of your death.

An observation I would make, in the event of you predeceasing your sister, if you also choose to make her a lead executor of your personal estate, that might be a considerable burden in addition to administering the trust for your brother. Is there no one else who can share dealing with your estate when the time comes?

Bearing in mind once you have passed, your sister will have to consider appointing a replacement trustee to act along side her to ensure continuity of trusteeship in the event of her death, so best to plan for and consider these contingencies as early as you all can.

optimist?

My thanks to all respondents above for their very valuable comments and advice which I value as objective insights which, being so close to the problem, I had not been able to recognise as relevant to my situation.

Also my apologies for not keeping in touch but, unfortunately, I have been involved in a complex round of hospital appointments and admissions which have taken me out of the picture for several weeks and am just now picking up where I left off. Perhaps that fact alone demonstrates the urgency of my need to act as soon as possible along the lines you have suggested. I should clarify the circumstances by hopefully answering some of the points you raised, which may alter your opinions/advice - if there are any points you consider paramount please point them out as I value any and all points which might help resolve the issue.

1. My sister will not be my own executor as I anticipate pre-deceasing my wife, who will be my sole beneficiary as we have no children. 

2. My sister has a large family of her own and is preparing for at least one other similar task involving other family members. It is definitely advisable for her to become a co-trustee of our Mother's estate but I am glad to say that is a finite responsibility which would end with the dissolution of our Mother's trust and I would not wish her to be encumbered with ongoing duties beyond that point. I have no intention of involving my wife as a trustee.

3. Mother's will, upon reading it carefully, did in fact leave my Brother a life interest in the house as follows :

"may live in the house and use it as his principal place of residence and have the use of the affects in connection with it until he dies" thus, I see from your comments, it must therefore have created an immediate post death trust.

On this point I should say that some 18months after her death I did register the Will with HMRC online but am unsure if that constituted a registration of Trust per se and recieved no response/advice/requirements from HMRC subsequently. I am now left wondering if I was in fact successful in doing what I thought I was doing in making that registration. I attempted to contact HMRC last week with a request for some clarification on this point and requested any documentation giving proof of the existence of the trust but recieved a message saying that portion of the website was concerned only with 'money laundering' and a refusal to answer my question to them.

Since then I have read several pages of confusing information headed 'Trust Registration Service Manual' which I have struggled to work through - needless to say I was completely unaware of this document when I originally attempted to go through what I believed was the registration process back then. I continue to work my way through it and, depending upon your responses, may have to backtrack and register the Trust over again to acquire documentary proof of the existence of the trust and recognition of myself as trustee.

4. Without proof of my trusteeship the property has not been transferred to me and, in fact, in sorting through my Mother's documents after her death I was unable to find any documents resembling house deeds. I simply do not know where they may be or who may have them as she did not have a solicitor and they were not held by any bank. 

Many thanks to all who have helped me get this far,

RAS

Have you checked the Land Registry? It costs £7, do not use the sponsored links to companies who charge 5 times as much. If it is indexed there, you know it registered before you even download and you don't need the original deeds.

You do need advice on the trust.

optimist?

My apologies to all, I have found the house deeds and Land Registry documents in the last ten minutes - kept in my safe, apart from all the working documents relating to the estate. 

Thank you RAS, that was my planned next step, now redundant thankfully, but I agree that I need advice on the trust (and its possible existence, or not) so have booked a personal visit from an HMRC advisor to establish just what the situation really is before attempting to progress.

I could really do with being at least forty years younger to cope with all this!

simongregson

Although obviously to be taken with a note of caution, can I suggest uploading a copy of the will to copilot (microsoft AI) or similar - and then ask questions about it. I found that it gave reasonable answers e.g. ask it 'does this will set up a trust' and 'how do I register the trust'. It gives step by step instructions for how to do this online and what answers to select. You could always then check with a solicitor but it might save you a bit of time and money as registering the trust is free to do if you do it yourself. You can also get it to draft adding your sister as a trustee (then add her online).

optimist?

Thanks for your suggestion Simon but I am not competent nor familiar enough with AI to use it safely, nor happy with the idea of trusting an AI to advise me in dealings with HMRC - who have the power to inflict swingeing penalties for 'false', albeit mistaken, declarations. Somehow I don't think they would accept "an AI told me to say that" as a valid reason for getting it wrong.

I have had comments that the will, by virtue of its wording, constitutes a Trust from its inception and I see that is almost certainly true. As I said above, I DID try to register it with HMRC previously and have been trying to get a face to face interview with them to present them with the actual documents and ask if I WAS successful in doing that : despite several attempts I have come up against several brick walls and have only a phone number which is probably an automated reply service. Is there any way for me to request a personal meeting with the Trust department which would definitively decide just where I really am in this process, and what I should do next?

silvercar

Given your own health issues, would it be worth instructing a solicitor to deal with this?

poseidon1

optimist? said:

Thanks for your suggestion Simon but I am not competent nor familiar enough with AI to use it safely, nor happy with the idea of trusting an AI to advise me in dealings with HMRC - who have the power to inflict swingeing penalties for 'false', albeit mistaken, declarations. Somehow I don't think they would accept "an AI told me to say that" as a valid reason for getting it wrong.

I have had comments that the will, by virtue of its wording, constitutes a Trust from its inception and I see that is almost certainly true. As I said above, I DID try to register it with HMRC previously and have been trying to get a face to face interview with them to present them with the actual documents and ask if I WAS successful in doing that : despite several attempts I have come up against several brick walls and have only a phone number which is probably an automated reply service. Is there any way for me to request a personal meeting with the Trust department which would definitively decide just where I really am in this process, and what I should do next?

The trust registration process is wholly online - see link

https://www.gov.uk/guidance/register-a-trust-as-a-trustee

Scrolling down towards the bottom of the link it sets out information you will need to have ready per following extract :

' What you’ll need

The following information is needed for both taxable and non-taxable trusts. However, you should read the section on taxable trusts to check what extra information you may need to provide.

You’ll need:

* the name of the trust

* the date the trust was created

* to say if the trust is an express trust or not

* details about if a non-UK trust has a business relationship in the UK

* details about any UK land or property the trust has purchased  ' .


Further down there is a 'green radio button' which commences the registration process. You can 't proceed without a Government Gateway ID number.

If none of the above looks familiar, then you did not previously attempt to register the trust on the register. Please note as an option, you can pay a trust Chartered Accountant to do it for you as your agent.


One last point, you only provided a small extract of the wording  from your mother's will. Were there any clauses which required property sale proceeds to be invested to produce trust income on his behalf, if your brother had to the leave the house and enter long term LOA care?