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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33946
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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The surviving spouse wishes to have a deed of variation for

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The surviving spouse wishes to have a deed of variation for her late husband died without leaving a will and has an estate that is taxable. she wishes for the deed of variation to be prepared as it is within two years from date of death but she has 2 minor children and needs to obtain the courts consent to sign the deed of variation on their behalf varying the estate so she inherits as surviving spouse. what is teh procedure and court forms needed to apply to court for the consent to deed of variation on behalf of minor beneficiaries.
Submitted: 3 years ago.
Category: Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
How will the variation benefit the children?
Clare
Customer: replied 3 years ago.

The estate is worth over one million and consists of a residential home being the matrimonial home worth 700k the rented property generating £8k per month which is worth 300k and this is without all the other shares and savings. Although there are large mortgages on the properties the estate is still likely to pay a large tax bill. The children would benefit more from saving on the tax as the mother can then have a more tax efficient will and gift some things at a later date when teh children are able to manage teh assets themselves making use of her allowance NRB. The children being minors would mean these assets need to be passed onto their trustees to look after for them under the intestacy rules with only £250k to the spouse. with the type of assets there are it would be difficult to pass any to the children as the deceased had a business shares portfolio other investment policies the type of investment not yet known and the properties. what is the criteria for teh judge to allow the application for DOV to be agreed on behalf of minors....thanks

Customer: replied 3 years ago.
Relist: Other.
havent received answer yet
Expert:  Clare replied 3 years ago.
Hi
My apologies for the delay
For clarity is the house not held in joint names?
Clare
Customer: replied 3 years ago.

thanks for reply .....yes the properties are in joint names - i know they will automatically pass to spouse but with all other assets there is still likely to be a tax bill.


 


hope this helps


 


thanks

Expert:  Clare replied 3 years ago.
Hi
So setting aside the properties - which will not form part of the estate - what is the extent of the assets held in sole name
Clare
Customer: replied 3 years ago.

life policies worth £309,000 and £286,431. ....approx £16k in various accounts ....a business account £28k. the figures are aproximates. thanks

Expert:  Clare replied 3 years ago.
Hi
And the Policies are payable to the estate rather than a nominated person?
Clare
Customer: replied 3 years ago.

yes

Expert:  Clare replied 3 years ago.
Hi
So the estate which will pass under the intestacy amounts to £640,000 and a tax bill of £26,000 - is that correct?
Clare
Customer: replied 3 years ago.

yes something like that

Expert:  Clare replied 3 years ago.
Hi
I am sorry but it is highly unlikely that the court will see this as a good reason for consenting to the Deed of variation as there is no overwhelming advantage to the Infant Children
I appreciate that there is a saving of capital - but frankly I do not believe that the Judge will be willing to condone it
You can read more here
http://uk.practicallaw.com/6-386-4134?service=privateclient
Please ask if you need further details
Clare
Customer: replied 3 years ago.

thanks for your reply but it's not just the saving on capital, there is the issue of organising the assets so that anything above the £250k is put away and invested for the children especially when most of the assets are tied up in property and mortgages. The policies were for the benefit of the mortgages although they are to be paid to the estate and form part of the estate if they do not pass to the spouse then the mortgages cannot be paid.


what are the forms needed to make such an application...i know the court is usually reluctant to grant the consent but i may still need to make teh application anyway .........do you know teh forms and to where teh application is made. i thought it would be teh Royal courts of Justice family division. im just not sure what form.

Expert:  Clare replied 3 years ago.
Hi
But in fact only half of the excess over £250,000 is "put away" and frankly I think there is no chance whatsoever of the Judge agreeing to this as it effectively deprives the children of their inheritance which represents only a relatively small part of the assets
However I do not have all the details of course
You will however need to have an Opinion prepared by an advocate confirming how and why this is in the interest of the children
The process is set out here
http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part64/pd_part64a
and here
http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part64
The Part 8 claim form is here
Case law is here
http://wbus.westlaw.co.uk/forms/pdf/cpf00151.pdfhttp://www.pwtadvice.co.uk/articles/?aID=4
Clare
Customer: replied 3 years ago.

Thank you for all the information. however i was not able to access teh last link could you kindly resend that link please

Expert:  Clare replied 3 years ago.
Hi
My apologies it seems to be unavailable for now
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33946
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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