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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10176
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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My wife and i had the same will nil rate band discretionary

Customer Question

My wife and i had the same will nil rate band discretionary trust.My wife passed away just over two years ago which left me the only trustee my wife left every thing to me and now i have been told that i will have to appoint another trustee if i want to sell my house.Because my wife died just over two years ago it will cost me over two thousand pounds but would have been ok if it had not been over the two years.
I hope that you can give me advise on this problem,
Regards,
G Stevens.
Submitted: 1 year ago.
Category: Law
Expert:  Aston Lawyer replied 1 year ago.

Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

Can you confirm that you both were holding the property as Tenants in common, and that is why another Trustee needs to be appointed to deal with the sale of the property?

I look forward to hearing from you.

Kind Regards

Al

Customer: replied 1 year ago.

yes both tenants in common and severance of a joint tenancy

Expert:  Aston Lawyer replied 1 year ago.

Hi George,

Thanks for your reply.

Nowadays, an additional Trustee can be appointed within the Transfer document, transferring the property to your Buyer. The new Trustee you appoint would normally be your Solicitor.

There should therefore be no additional fee for you to pay, as there is no need to draw up a separate Deed appointing an additional Trustee!

Not sure who told you a separate Deed is required, but they are wrong!

You should raise this with your Conveyancing Solicitor.

I hope this helps and answers your question.

Kind Regards

Al

Customer: replied 1 year ago.

Hi Al

I am not selling my house this is what i have been told in case i did.Could you explain about the two years after my wife died.what is that all about.

Thanks.

Expert:  Aston Lawyer replied 1 year ago.

Hi George,

Thanks for your reply.

Well, my answer stands for however long in the future you do sell the property.

The 2 year rule relates to the law which states that you are able to amend the terms of a Will , post death, provided it is drawn up and signed within 2 years of death of the person whose Will you wish to amend.

If I have assisted, I would be grateful if you could rate my answer.

Kind Regards

Al

Expert:  Aston Lawyer replied 1 year ago.

Hi George,

Can I assist you any further?

Kind Regards

Al

Customer: replied 1 year ago.

Hi Al

The Trustees in my wifes will were HSBC and myself . I had a letter from HSBC saying that they would not be acting as Executors or a trustee so i carried on myself as every thing was left to me.

On the 22 July 2015 i had a letter from HSBC to tell me that they were transferring their probate and Executor services to Simplify Trust Corporation and that i could choose one of these

Option 1 Appoint Simplify as Executor.

" 2 Appoint another Executor either a professional or a personal one.

Option 3 Confirm your will is no longer valid if you have a replacement will in place.

It was while i was makeing up my mind what to do that i found out that we (my wife and i) were tenants in common so i read the letter from the HM land Registry which said notification to a joint owner following severanceof a joint tenancy the letter was addressed to my wife with it was a completion of registration your application has been completed.Also with it were explanatory notes and the one that i noticed said that if one of the proprietors dies (there were only two proprietors my wife and myself) so that only one of them remains,the restriction will mean that the land Registry will not be able to register any transfers or other dealing with the property for money.In practice this means that the remaining proprietor would not be able on his or her own to sell,mortgage or otherwise deal with the property for money, because the restriction would stop registration.The remaing proprietor would need to arrange for at least one other person to become a joint proprietorof the property and to act with hi or her as a trustee.The for example a purchaser could safely complete a purchase because a transfer would be by two or more proprietors,so the restriction would not prevent registration.

I talked to the HM Land Registry and they agreed with those notes and that i should talk to a solicitor.

So i contacted the solicitors office that made the will at HSBC And they advised that i should instruct them to advise the trustees in respect or establishig the nil rate band discretionary trust that was in my late wifes will.Which will cost £2000 +

That brings it up to date. I did tell the solicitors that i would like a normal will as the money i have now is below the inheritance tax allowance which they replied if it had been within two two years since my wifes death then ok.I am still finding it a problem to understand what within the two years is all about.

I hope that you understand this.

Thanks

George.

Expert:  Aston Lawyer replied 1 year ago.

Hi George,

Whenever someone dies, their Benenficiary is able to alter the terms of the Will, provided it is done by way of a Deed within 2 years of death. So, in your case, if you wanted all reference to the nil rate band discretionary trust being removed from your Wife's Will, you could have signed a Deed to this effect, within 2 years of her death.

As 2 years has expired, you ar eno longer able to do this.

As regards ***** ***** in common Restriction, the Land Registry are indeed correct. However, it is normal procedure (I have done one this week) for a sole suviving tenant in common to appoint another Trustee in the Land Registry Transfer document to the Buyer. ie once a Sale has been agreed, the surviving tenant in common can appoint his Solicitor, for example, as a second Trustee, so that the buyer is paying over the capital (the Purchase monies) to 2 Trustees, and the 2 Trustees (you and your Solicitor) can give a valid receipt for the purchase monies.

The Land Registry are more than happy to accept this, and will remove the Restriction when the Transfer document is lodged by the Buyer

Solicitor. This way, it avoids the need for you to spend money on having a separate Deed drawn up.

I hope this clarifies things for you.

Kind Regards

Al

Customer: replied 1 year ago.

Thanks Al

I am just getting my head around The Tenancy in common Restriction. So does this mean that because i am not moving yet i can wait until i am and then get another Trustee i was going to have my son would you advise this.

As for the two year problem would you agree with the solicitor and should i pay £2000 it seems a lot of money.I still do not understand this.

Thanks

George.

Expert:  Aston Lawyer replied 1 year ago.

Hi George,

Tenancy in common- yes, you can wait until your property is eventually sold before doing anything- you will just need to tell your Solicitor who deals with the Sale that you would like to appoint your Son.

I really don't think you need to go to the expense of having any other document drawn up, so I would save your £2,000. If you are unsure, what i suggest you do is speak to a local Wills Solicitor for a second opinion- £2,000 is far too much to pay even if it is required, which I don't think it is!!

Good luck.

Best Wishes

Al

Customer: replied 1 year ago.

Thanks Al

Now i understand the Tenancy in common i will wait until i decide to move.

Could you explain what any other document drawn up is this is the bit i do not understand.You do not think that it is needed i am with you on that one.

Thanks

George.

Expert:  Aston Lawyer replied 1 year ago.

Hi George,

Thanks.

To be honest, I can only assume that they want to charge you £2,000 to draw up a Deed appointing a second Trustee, which is not necessary whatsoever!

Kind Regards

Al

Customer: replied 1 year ago.

Hi Al

I am very pleased that it is not necessary.

One more thing please could you read this letter that was sent by the solicitors. Can they charge me for this as i have not signed.

Terms of business

Advice regarding nil rate band discretionary trust.

In order to proceed i will require the following:

1 I have enclosed my terms of business. They are enclosed in duplicate.Please return one copy to me duly signed.

2 Please let me have a cheque for £250 on account of costs.

I have not signed or sent back can they still charge me £250.

Thanks

George.

Expert:  Aston Lawyer replied 1 year ago.

Hi George,

The requested payment of £250 is to cover any future work they were to carry out for you, so provided you have not returned the terms of business and no work has been done, then you certainly don't have to pay them anything.

Kind Regards

Al

Customer: replied 1 year ago.

Hi Al

Should i phone the solicitor and tell them that i do not require this is this the way to do it.

My will, HSBC are trustees and so was my wife.HSBC are also my executors but as you know they are transferring their business to Simplify that is why they are asking me what i would like to do. Should i ask a friend to be Executor because my son cannot be as he is the beneficiarie is that correct? My son would be a trustee so he can replace HSBC do i need another trustee? Should i get my will back from the solicitors and then i can get a different solicitor to make the changes as i am not very happy with my present solicitors.

Thanks

George.

Expert:  Aston Lawyer replied 1 year ago.

Hi George,

I would just phone them and tell them you don't want the work doing.

As regards ***** ***** I must say that if you appoint a Bank or any other Body as Executor, they charge an arm and a leg!

I would not therefore recommend that you stick with HSBC/Simplify.

Ideally, you need 2 Executors, so if you can appoint a friend and your son

should also be ablre to act even if he is a beneficiary.

I would advise that you dgo to a local Wills Solicitor and he can draw up a new Will and answer any questions you may have.

I hope I have now answered your questions, and if so, I would be grateful if you could rate my answer.

Kind Regards

Al

Customer: replied 1 year ago.

Hi Al

Should i have my will sent from the solicitors? will i need it when i go to my local solicitors?

My last question is the deeds of the house are in both our names should i get that changed.

Thanks

George.

Expert:  Aston Lawyer replied 1 year ago.

Hi George,

You are best to show your existing Will to your local Solicitor- he can either request it on your behalf or you can obtain it directly. If yo udon't have irt by the time you see your Solicitor, please take a copy with you, if you have one.

As regards ***** ***** there is nothing you need to do as regards ***** ***** Wife's name. All you need to do is leave a copy of her death certificate with the Deeds and as and when the property is sold, a copy of her death certiifcate will be provided to the buiyers Solicitor.

Hope this clarifies matters.

Kind Regards

Al

Customer: replied 1 year ago.

Hi Al

Thank you for helping me through this for me it is hard to understand but you made it a lot easier.

Thank you again

George.

Expert:  Aston Lawyer replied 1 year ago.

Thanks George.

If you are happy with my answers, I would be grateful if you could rate my answer, so I can get credited for my time.

All the best!

Al

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