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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33283
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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My Wife recently died having appointed me her Executor and

Customer Question

My Wife recently died having appointed me her Executor and Trustee (and I now have the Grant of Probate)My Wife owned a property that she held in Trust for herself and others.Because of a developing lack of competence her financial affairs were placed in the hands of a COP appointed Deputy.This required the property to be transferred into the names of two of the Deputy’s staff as Trustees (the COP have confirmed in writing that“These Trustees were only appointed to deal with the sale of the said property and nothing else.
They have absolutely nothing to do with the Trustees of your wife's will. “1. Although this property is registered in their name do they hold it as such or as Trustees for my Wife (subject to the terms of the original Trust)2. As I have also been appointed as ‘Trustee’ by my Wife what is the relationship between that and their Trusteeship.3. As Executor I am obliged to sell the property in order to produce sufficient (hopefully) funds to pay off her liabilities.4. Am I entitled (a) to do this without their express permission
or interference and are they obliged to complete the sale in
accordance with my instructions, please?
Submitted: 8 months ago.
Category: Family Law
Expert:  michael holly replied 8 months ago.
The trustees appointed by the CoP have no power at all.The ability to act of a CoP deputy or attorney under a Lasting Power of Attorney only exists whilst the donor ,here your wife, is alive.On her death this power ceased and the ability to deal with your wife's property passed to you once you had obtained the grant of probate.Your job as executor is to deal with the property in accordance with the terms of the trust and your wife's Will.I hope this helps. If there are any further points please respond I will be happy to reply.Best wishesMichael
Customer: replied 8 months ago.
RE "The ability to act of a COP DEPUTY or ATTORNEY UNDER........"As I indicated'This required the property to be transferred into the names of two of the Deputy’s staff as TRUSTEESthere being no associated POA ???My concern is about the Trustee status (and its consequences in this respect, please?
Expert:  michael holly replied 8 months ago.
The Trustees were appointed because your wife had lost her capacity to act as trustee for both herself and the other beneficiaries of the trust. Your wife's interest in that trust now forms part of her estate which you are executor of.What happens to the property which is the subject of the trust depends on the terms of that trust. It appears that the CoP deputies were appointed specifically to sell the property and , if so , they will do so and need to account to you as executor of your wife's estate.Their power derives from the CoP so a Power of Attorney is not needed. They can continue to be trustees of this trust as there are other beneficiaries under that trust. However, their role and your role are completely different for the reasons givenI hope this is clear, if not please replyBest regardsMichael
Customer: replied 8 months ago.
Para 1 - agreedPara 2 - the appointment of the Deputy was general (and has finished given her death)The COP have, however, advised that the subsequent Trustees were appointed 'solely to sell the property'They do not wish to do so or, alternatively in the manner I, as Trustee prefer not to use.As Executor I believe I have the responsibility for converting assets into cash in order to pay off my Wife's obligations (which will be greater than the amount realised)and it is in that scenario I ask if I can insist the the property is transferred into my name for disposal or, alternatively, that they have to sell the property in accordance with my instructions, please
Expert:  michael holly replied 8 months ago.
If your wife was the sole trustee of the trust I do not see that the CoP have the legal capacity to try to carry out the terms of the trust.They were acting on behalf of your wife, on her death their ability to do so ended and the trust now falls to be dealt with by you as part of her estate.You should ask the CoP on what legal basis they are continuing to administer the terms of the trustMichael
Customer: replied 8 months ago.
"If your wife was the sole trustee of the trust I do not see that the CoP have the legal capacity to try to carry out the terms of the trust"Perhaps I was not clear on this? - The Deputy, upon appointment, applied to the COP for a new, replacement Trustee to replace my Wife.The COP appointed two of the Deputy's legal staff to so act (a) 'in relation to the trust affecting the Trust property stating "b. the property subject to the Trust now does now vest in in the new TrusteesFrom what I understand you to say that 'new' Trust" (AS) They were acting on behalf of your wife, on her death their ability to do so ended and the trust now falls to be dealt with by you as part of her estate."If this is so may I ask that you provide the appropriate authority in order that I might bring it to their attention, please?Thanks - MP
Expert:  michael holly replied 8 months ago.
What I am saying is that the power of the deputies to act in the place of your wife would ordinarily cease upon her death.The CoP should be asked upon what legal basis they can act now in relation to the trust.Michael
Customer: replied 8 months ago.
I am sorry, I fully understand that the DEPUTYSHIP ceased upon my Wife's death - what I am talking about is the subsequent COP appointment of 'new trustees' (and the authority to re-register the ownership of the property) and am questioning whether this TRUSTEE situation continues after the cessation of the Deputyship (and the related legal authority which covers this situation), please?
Expert:  michael holly replied 8 months ago.
I cannot see how it can, ask the CoP the trustees are still trying to act because I do not think that they can. The ending of the deputyship means the end of the power of the deputies to act as trustees
Customer: replied 8 months ago.
It is not the appointed (named) Deputy who is acting as Trustee - he happened to issue the application to the COP requesting the appointment of two individuals - who happen to be members of his Practice - but NOT deputies ??
Expert:  Clare replied 8 months ago.
Thank you for your qustionI will try and assistWhat was the basis of the Trust on which your late wife held the property?
Customer: replied 8 months ago.
2. OH completion of the purchase of the Property the Trustees shall hold the Property upon trust to sell the same with power to postpone the sale for such period as they shall think fit and to invest or apply the net proceeds of sale in any manner hereby authorised and subject thereto with the Property or the proceeds of sale thereof or the investments representing the same shall be held by the Trustees on trust for themselves, Miss Breslin and Nicola in equal one-quarter shares
3. THE Trustees may permit Miss Breslin and Nicola to occupy the Property on the understanding that Miss Breslin during the period of such occupation pays all rates, taxes and other outgoings payable in respect of the Property and observes all covenants and conditions (if any) subject to which the Property may be held and indemnifies the Trustees therefrom and keeps the Property in a reasonable state of repair and insured to the full value with such insurers and against such risks as the Trustees may from time to time reasonably direct

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