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Clare, Solicitor
Category: Law
Satisfied Customers: 35044
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My father died 18 months ago, he appointed his partner

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Hi, my father died 18 months ago, he appointed his partner as his executor. He left his half of the house to my sister and I in a trust giving his partner a life tenancy. As executor she appointed herself, her daughter and me as trustees. She said that it was easier this way as my sister lives in America. At the time I was very upset as I was very close to my dad and didn't think anything of it I saw it that when she died dads half of the house would simply pass to my sister and I. However, she has just told me that she is buying a new flat nearer her daughter and that she has signed the paper work. She says that any profit from the sale will be invested and paid to her. The flat that she is buying is a retirement flat and there are costs involved so it is not straight forward and would not result in my fathers half of the house remaining intact. Surely she cannot do this without my agreement as a trustee?
Customer: replied 2 years ago.
I have tried to up load my fathers will but it will not let me. there is a section immediately after the definition of life tenant etc that says I give the trust fund to the property trustees to hold upon the following trusts.
3. the property trustees shall pay the income of the trust fund to the life tenant for the trust period if the life tenant shall survive me by 30 days.
4. the property trustees may at any time or times during the trust period as to the whole or any part of the trust fund in which the life tenant has for the time being an interest in possession
i. lend money or assets comprised in the trust fund to the life tenant on such terms (whether including provision for the payment of interest) as the property trustees think fit
ii. pay out of any proceeds of sale of this property or any substituted property (purchased as a result of this sub-clause) to purchase a freehold or leasehold property which will be held for the benefit of the life tenant on the same trusts to which this clause refers.
5. I declare that in exercising the powers conferred upon the property trustees in clause 4.4 above the property trustees shall be entitled to have read solely to the interests of the life tenant and to disregard all other interests or potential interests under my will.
6. subject as above the property trustees shall permit the life tenant to occupy or use rent free any property or assets which or the beneficial interest in which is for the time being comprised in the trust fund subject to those conditions for the payment of outgoings insurance repair decoration and other matters as the property trustees shall from time to time consider reasonable.
7. subject as above the property trustees shall hold the capital and income of the trust fund for the said ....(my sister and I) which shall be held for them or survivor of them in equal shares....
HiThank you for your questionMy name is***** shall do my best to help you but I need some further information firstDo you mean that the new flat is worth less than 50% of the value o fthe current property?
Customer: replied 2 years ago.
no the new flat is about 30K less than the bungalow she is currently in. In the proposed move she may also accept an under market value for the bungalow in part exchange
So your fathers share is in fact safe?
Customer: replied 2 years ago.
well, the new flat is a retirement one and so has a weekly charge which the owners will be liable for and also a charge when it is sold. This will eat into the capital of the trust fund
Customer: replied 2 years ago.
but it appears that she has already signed paperwork to purchase the flat without consulting me. She and her daughter are trustees along side me.
Customer: replied 2 years ago.
there will also be a residue that she says will be invested and then she will receive the interest
Customer: replied 2 years ago.
so as a trustee should she of consulted me first and can I stop the sale of the bungalow for an under market value as this would affect my fathers share of the capital
Customer: replied 2 years ago.
are you able to help me with this?
How much if an undervalue is the sale progressing for?Is it acknowledged that it is selling at an undervalue?
Customer: replied 2 years ago.
she only told me yesterday. when the trust was set up it was valued at 285k (2014) property in this area has seen a big increase. But can she act to sell the property without the agreement of the other trustees?
Customer: replied 2 years ago.
My sister an I are very anxious to find out the answer if she can act without the agreement of the other trustees
The terms of the Trust do indeed allow her to do this - and in fact as a Trustee you are bound by the terms not to refuse her requestHowever the fact is that the investment will be safe.If the sale is at an undervalue then you can insist that there is a formal valuation and that the deficit comes from her half of the funds not the half that belongs to the trust - indeed as Trustees you are required to do soThe half share will then either be used in the purchase or invested (or both) and will remain secure as either a percentage of the property - or as an invested sumPlease ask if you need further details
Customer: replied 2 years ago.
So she has the power to sell the property at whatever price she likes? I thought that as a trust there would be a formal agreement of all of the trustees as in order to protect my fathers investment it would need to be agreed as you state above but also that she is liable for all charges not my fathers share. What about the surplus being I have a say in where that is? does she need to have agreement from all the trustees? otherwise what is the point of having more than one trustee?
The price has to be at value - or the deficit comes from her shareYou can indeed have input into the investment options - but yes she appointed the Trustees to make her life easier - but again sadly there was nothing you could do to prevent that
Customer: replied 2 years ago.
But all trustees need to agree and that needs to be documented and recorded?
There has to be a majority decision - but you are correct to should be recorded - and you do need to remind her that whilst she can indeed do this it does still have to be documented
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