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James Mather
James Mather,
Category: Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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My husband died on 13/3/2010, his will left everything except

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My husband died on 13/3/2010, his will left everything except exempt transfers to a trust for my benefit. I received form 41G (trust) from HMRC, this was completed and returned. I also received a tax return from the HMRC trusts and estates office which I completed. I have received a calculation of zero tax liability from HMRC.
I understand that, if done within 2 years, I can change the will so that a trust is not set up and all the estate passes directly to me.
Please can you tell me how to do this.
If I kept the trust it would consist of a charge on the house. I have not done this yet.

This seems a very complicated way of doing things. What was your husband trying to achieve? Are you the only beneficiary? What is the total value of the estate, although bear in mind that there is no inheritance tax between husband and wife in any event?

Did you get the lifetime income from the trust with someone else getting the remainder thereafter .

It would help if you could let me have a copy of the will

Customer: replied 5 years ago.

The will was drawn up before unused exemptions were able to be passed onto spouses, on the 2nd death IHT would have been due. We tried to change it before he died but were advised not to.

We owned the house as tenants in common and the total value of the estate was £253,608. The house was valued at £315,000 for probate.

I have inserted a copy of the will, if there are any pages missing (4 pages) or if you can't read it, please get back to me and I'll try again or summarise it. Thanks

Attachment: 2013-01-09_123412_d_whitehouse_will_pgs_3__4.pdf

It appears that
the beneficiaries are you and your children whereas in your initial post you say that everything
except exempt transfers is in a trust for your benefit. Can you please clarify?

Will the children
agree to this?

Customer: replied 5 years ago.

Sorry. Para 4.8 states that I'm to be regarded as having greatest claim, and the children are all in agreement that I may have any benefits. The trust will have no income as it comprises part of the value of the house. (I have not registered a charge with the land registry yet.). My will is a mirror and all my assets are split equally between my 3 (adult) children.

That actually is not
what clause 4.8 says. You must read it literally. It in poses no obligations on
the trustees and merely expresses a wish. The wish is not binding on the
trustees and they are free to do what they like.

BUT, regardless of
what the trustees want, provided all the beneficiaries are over 18 and they
agree what is to happen, ( that the trust comes to an end and you get
everything), then you get the whole proceeds of the estate, (which will give
the benefit of spouse exemption), all the beneficiaries need to execute the
deed of variation (that is the two-year time limit) whereby bequests to them
under the discretionary trust are varied so that they go to you. The deeds of
variation affects of the original will as though it were written in completely
different terms.

This is the rule
in an old case called Saunders v Vautier. If however one beneficiary does not
agree that puts an end to any variation.

There is no
standard form. It is a case of drafting each deed individually and advising
each beneficiary who is asked to sign one, to take independent legal advice on
it. It is not really a do it yourself job.

Can I help
further? Please bear with today because I will be off-line.

The next part is
really important for me:

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The thread remains open. Thanks