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Niggle44

Stipulations in a will

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My daughter has recently been left a large sum of money and we have been advised that the will stipulates the funds are paid to and held by my wife.

 

The funds are to be used to help our daughter purchase a property for herself and her children. Whilst the idea is very well intentioned our daughter would like to use some of the funds to help out with immediate needs for herself and family.

 

How legally restrained is my wife in releasing funds ?. (we have not seen the will itself and have only received a letter from the executing solicitor saying how much money , how it is supposed to be used and a request for suitable banking details for them to transfer the funds).

There is also a concern as to whether such a large sum appearing in our bank will be seen as income and the tax man get involved. ( will banks create a trust fund account ?)

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Ask the Executing Solicitor for a copy of the Will and his understanding of the Deceased's reasoning.

Deceased may have thought your dau may fritter away the Capital sum , without parental oversight.

You may need Court approval to vary the Terms of the Will.

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My daughter has recently been left a large sum of money and we have been advised that the will stipulates the funds are paid to and held by my wife.

 

There is also a concern as to whether such a large sum appearing in our bank will be seen as income and the tax man get involved. ( will banks create a trust fund account ?)

 

Without knowing the exact wording of the will, it sound like your wife is being nominated as a trustee to oversee the funds. I would recommend taking qualified legal advice on how to set up and manage a trust. Properly set up, there shouldn't be any tax implications for anyone involved.


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It's an unusual provision when the beneficiary is an adult. Was the Will originally written when your daughter was a minor?

 

 

Once Probate has been granted, which it presumably has in this case, a Will is a public document. If you want to check out what it says without asking the solicitor for it see if it's on here https://www.gov.uk/search-will-probate Wills should be on there 14 days after Probate is issued. Costs £10. Says it can take up to 2 weeks to send you a copy (which is done by a downloadable pdf) but when I've used it it only took a few days. Subsequently ask the solicitor dealing with the Estate for certified copy of the Will. This will be asked for when you open an account for the money.

 

 

Your wife needs to get advice (from her own Solicitor, not the one acting for the Estate) on what sort of Trust has been set up by the Will and what her obligations are as a Trustee. Especially as it involves a large sum of money. The legal constraints on releasing funds to the beneficiary (your daughter) will depend both on what the Will says and the type of Trust that has been established. Independent legal advice is essential. Your question cannot be answered here.

 

I have been a Trustee under a trust set up by a Will and it's very complex. Not only does the trusteeship of the funds have lots of legal issues your wife will also have to register the Trust with the HMRC Trusts and Estates office in Nottingham and complete annual tax returns for the Trust funds. I thought I was reasonably clued up on HMRC and tax until I became a Trustee of a trust set up under a Will. I wouldn't do it again! Nightmare and very time consuming. I'd pay a solicitor or accountant to prepare the tax returns another time. Even if the Trust has been properly set up (which might turn out to be a big assumption) I wouldn't agree with the comment that there should be no tax implications. Not in my experience, anyway. Professional advice needed. However, your experience may be much simpler than mine, - I hope so anyway. I had to run the Trust for 5 years until the beneficiary reached a certain age. If you are able to transfer all the money to your daughter almost immediately and then wind up the Trust all in the same tax year it should be a lot simpler than it was for me.

 

When your wife is appointing a solicitor to advise her she should talk to several local firms and find one that has a specialist Partner in Trust and Probate. Many small solicitors firms don't.

 

 

Banks will open an account in the name of the trust fund. Go in and see your local branch. I'd like to say it was straightforward but when I did it was an infuriating process. The local branch I opened it at turned out to have zero understanding of what a Trust was, let alone how to set the account up on their system! Under money laundering regulations they will, I am sure, want to know the source of the funds. However, the solicitor dealing with the Estate can provide a letter confirming its source. They will also need to see the Will. My local bank also insisted on the Death Certificate as well as Probate document, despite me pointing out that the Probate Registry doesn't grant Probate unless they know the person is dead! The bank didn't understand that either....

 

 

Do not pay the funds into your own/your wife's personal bank accounts. Trustees must keep Trust funds separate from their own money. Funds must not be commingled, open the account before accepting a transfer from the Estate solicitor.

 

Good luck!

 

PS The Will may not give the Trust a name in which case you'll need to name it yourself to open an account and to run the affairs of the Trust. My solicitor said you can call it what you like but typically if the deceased was John Smith you'd name it 'The John Smith Will Trust'

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I wouldn't agree with the comment that there should be no tax implications. Not in my experience, anyway. Professional advice needed.

 

 

I should have been a little more specific. There shouldn't be any tax implications for the wife or daughter. The trust may well be subject to tax, and I totally agree that professional advice is essential.


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I agree Mr P. Certainly for OP's wife, if her sole role is Trustee there shouldn't be any implications for her personal tax as none of the money is hers. She only holds it on trust for the beneficiary. That underlines why it is important to keep Trust funds completely separate from the Trustee's own money, different bank accounts etc. The beneficiary (daughter's) position needs advice but hopefully won't have tax implications if it's being left as a capital sum (that isn't tax advice :-) ). In general legacies received under a Will are not taxable as income.

 

The tax position of the Trust itself, I have learned from my experience, could be anything from very simple to a nightmare! Definitely needs professional advice.

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The problem I see is that unless she finds a property of exactly the amount of the inheritance, there's no explanation in the will about what to do with leftover money.

Could she buy a cheaper property and use the surplus to redecorate it or buy furniture?

Professional advice needed, I agree.

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"My daughter has recently been left a large sum of money and we have been advised that the will stipulates the funds are paid to and held by my wife".

 

Who said anything about Trusts, if your wife was a trustee she would already know about it. All the answers above are overly complicated. Your wife receives the money, gives it to your Daughter. No one should know.

Only God will know it wasn't used for its intended purpose.

 

Except you just posted it on a public forum.................................................

 

H


40 years at the pointy end of the motor trade. :eek:

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"My daughter has recently been left a large sum of money and we have been advised that the will stipulates the funds are paid to and held by my wife".

 

Who said anything about Trusts, if your wife was a trustee she would already know about it.

 

 

"...paid to and held by my wife" is a perfect example of the legal definition of a Trust!

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Personally, I would ask the solicitor for a copy of the will or at least a copy of the provisions relating to your wife and daughter.

 

Hopefully this will all become much clearer when you know the exact wording of the will. Your wife can then make an informed decision as to whether she requires professional advice or not.

 

If this is a 'bare trust', which may be the case if the daughter is the only beneficiary, the daughter would be legally entitled to require your wife to transfer the money to her anyway. Unless the will says something unusual I suspect there will be no issue with transferring the money to the daughter now.

 

I don't see how the tax man would get involved as this is clearly an inheritance rather than income, the solicitor's letter is more than enough proof of that.


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