Looking for some advice about a house trust after fathers death

[just_jue]

My dad passed away 2 years ago and  in his will the house was put into trust between myself, my brother and my dads wife.

There was a few conditions, my dads wife was allowed to stay in the house as long as she wants, but is liable for all bills, repairs and insurances etc, no one else was allowed to move in and she wasn't allowed to move out and rent it out. And if she wants to move on the house was to be sold.

She has now found a new partner and wants to move on, at first she thought that she could sell the house, keep the money and pay us what left after she passes and was trying to see if she could change the details of the will.

It now seems that the trust was never set up or registered and she is now asking for mine and my brother date of birth and NI number so this can be done, would we need to sign anything?

In the will it is saying that my brother and me have to agree in writing to any changes or to the sale.

Thanks in advance.

[lolerz]

I would suggest more specialist legal advice for this, personally.

The trust should have been set up by the executor of the will in the first instance and if this hasn't been done then there are legal implications to this.

You certainly shouldn't sign anything until you've consulted with a solicitor, especially if you're unsure on what you're signing.

[just_jue]

Thank you

[lolerz]

Also tagging @Ethel Street who's far more knowledgeable than me in these situations  

[honeybee13]

Fwiw it sounds like a regular will trust to me, but I agree about talking to a solicitor. Also, I wouldn't sign anything without knowing a lot more about it.

Everything you need to know about will trusts | The...

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Probate Executive at Stephensons, Adam Sym explains the mechanics of a will trust, its legal requirements, and whether using one could be right for...

HB

[Ethel Street]

The type of Will Trust that you describe is common in principle but can be complex in practice (especially for tax) so I agree that you need to consult a solicitor specialising in wills, probate and trusts (not all firms of solicitors have such a specialist). 

I've twice been Executor in a Will that established a Trust. In both cases we had advice from a specialist solicitor. In one case the Will Trust needed to be registered with HMRC, in the other (the case which was similar to the one here) it didn't.

So sharing my experience, and what I learned from the solicitors advising me in the past (but not giving expert advice)...

Will Trusts do not usually need any other documentation or 'setting up'. The Will, as long as correctly drafted, is also the "Trust deed" that sets up the Trust and nothing else is needed. The Trust then automatically comes into effect on the death of the testator. The Will needs to state who the Trustees are. Commonly the Executors are also the Trustees in the sort of Trust described here but the Trustees can be different people. Does the Will say something like "I appoint ...X... and ...Y...  and ...Z... ("my Trustees") to be the Executors and Trustees of this my Will"? Or are the Executors and Trustees named separately and aren't all the same people?

Registration of Trusts is usually only required for tax purposes, ie registration with HMRC's Trusts and Estates department. There is nowhere that holds a register of Trusts in general. Not having registered a Trust with HMRC is unlikely to invalidate the Trust as such but could get the Trustees into trouble and expose them to penalties with HMRC for non registration. 

Not all Trusts have to be registered, for example Trusts that are unlikely to produce any taxable income or capital gain. The Trust you describe here may fall within the category of Trusts that don't need to be registered (only may - take advice). See the seventh bullet point under the heading "If your trust is not liable for UK taxes" here: Trusts and taxes: When you must register a trust - GOV.UK (www.gov.uk)

It sounds like your dad's wife is one of the Trustees (and an Executor?) and believes, or has been advised, that the Will Trust needs to be registered with HMRC so is taking steps to do that on behalf of all the Trustees. DoB and NINO of all Trustees is information HMRC will require. The implication is that there may be some tax to be paid, possibly CGT from the date of your dad's death to date of sale, but you would need a Trust taxation specialist to give you advice on that. And maybe a late registration penalty. (I have learned that the taxation of Trusts is horribly complex!)

I believe HMRC will require all the Trustees named in the Will to sign the HMRC form registering the Trust, although mostly when I was involved HMRC subsequently dealt only with me as the "Lead Trustee", ie the person authorised by all the Trustees to act on their behalf.

If the three of you are the Trustees named in the Will then I would expect it to need the agreement of all three of you to sell the house, subject to any specific provisions of the Will.

Hope that's of some help.

 

 

[just_jue]

Ethel Street, thank you for explain everything to me.

I have tried reading up and found it way over my head.

Looking online there is a Probate and will lawyer in the next street to me and I am going to let them have a read of the will and see where we go from there.
It does sound like she is wanting our information for the HMRC. I will go and speak to her and see if this is so.

[just_jue]

I have booked up a meeting with a local solicitor.

After speaking with my Dads wife she informed me that she has twice drawn on the life time mortgage since my dads death that her and my dad opened before his death.

Should she of asked us before doing this and how will this effect the sale later?

[lolerz]

Imo the money wasn't hers to spend (was part of the estate that would form the trust) so I'd expect that her share of the sale is reduced in line with how much she had out the mortgage.

 

Be best to check with your solicitor though during the appointment.

[just_jue]

That is what I thought.

If it was towards repairs of the house that would be fine, but I still think we should of be informed.

[Ethel Street]

I don't know much about Lifetime Mortgages and we don't know what the rest of the Will says, who owned the property at the date of your father's death or even if she is an Executor so I can't give any specific advice and agree with lolerz that you should discuss this with the soliciitor.

What I understand a lifetime mortgage to be is essentially a loan facility secured on the property from which you can borrow money which is repaid from the sale of the property when you die. So a type of Equity Release. So if you are going to sell the house soon then I would anticipate that the loans she has taken will have to be repaid from the sale proceeds. That will reduce the amount left in the Residuary Estate and so the amount the beneficiaries will inherit. She may be able to transfer the loans to the new house she is moving to with her new partner - if she has any ownership in it....

Whether you can adjust what she receives from the Estate to take account of the loans she has taken out is something you need to take legal advice on. It depends, for one thing, whether she is a Residuary Beneficiary at all. Is she? And is she an Executor? If she is she could obstruct your attempts to reduce her share of the Residuary Estate. You have Probate presumably. Is she named on the Probate document as an Executor?

I would question whether she had the right to borrow further money under the lifetime mortgage after your father's death if the house had been owned solely by your father. It could even be fraud because you can generally only borrow secured on property that you own, not on property owned by someone else (at least not without the owner's consent). I wonder if she has told the mortgage company that your father has died?

The Will Trust appears to say that from the date of your father's death the house is legally owned by his Trustees. She is one of them but that doesn't give her the power to act unilaterally and take out further loans. And in any case Trustees have to act in the best interests of the beneficiaries as a whole and I believe Trustees are forbidden by law to use Trust assets as security for their personal benefit. These are potentially serious criminal offences, I wonder if she realises that?

It might be legal to raise a loan secured on the house to carry out repairs but (a) that would have to be a decision of all three Trustees and (b) it would be done only if the repairs could not be paid for from other Estate assets.  Surely if the repairs needed were so large that a new mortgage loan was needed you would have known about the condition of the house?

Who was the registered owner at the Land Registry at your father's date of death? Is it now registered in your three names as Trustees? It might be worth you getting copy of the Title document for the house from the Land Registry to show the solicitor. It costs £3 and you get a downloadable pdf. Search for land and property information - GOV.UK (www.gov.uk)   It's only the Title Register you need to get, you don't need the Title Plan. If it's the first time you've used the Land Registry site it will ask you to set up a (free) Land Registry account before you can do the download.

I think you have uncovered a serious issue here that needs professional legal advice. 

Incidentally, I assume you are an Executor so do you have a copy of the "life time mortgage ... that her and my dad opened before his death"? As Executor you have it because the liabilties your father incurred under it are part of his Estate. Ask her for a copy.
 

[just_jue]

I have looked on the Land Registry and it is now just her name on the register. The date was just after their wedding, is there a way of seeing who was registered before his death?

On the charge register there are two charges for MORE 2 LIFE LTD & LT Mortgage Financing Limited both on the same date.

I have booked an appointment but this wont be until the end of the month as that is the earliest available 

[Ethel Street]

This gets more complicated every time you post!  Do you mean that she was registered as sole owner some years before he died? That he had gifted her the house but continued to live in it with her?  How many years before his death was the house transferred to his wife? I find this confusing, I am not going to try to guess what was going on. You will need to do research and discuss with the solicitor.

It is possible to get the previous ownership records but I've never done it. Call Land Registry customer services for advice.

But if she was the sole owner of the house before he died I'm not sure how it can form part of your father's Estate at all, or how it can now be held in Trust under the Will. 

 

[just_jue]

They were married in April 2019 and the would of both been on the deeds when they were changed on June 2019.

I can only think she filled out a DJP form?

I have the will in front of me and it has dad name and address signed July 2019.

Dad asked for myself, my brother and his wife to be executors and trustees.

 

One of the clauses say:

I give free of tax to my trustees my beneficial share in any freehold or leasehold property which wife & I co-own as our principal residence at the time of my death.

[Ethel Street]

I can't really offer you any more advice on this, you need to discuss with the solicitor. Getting the previous title register records will be helpful and may show whether before death they co-owned as Joint Tenants or Tenants in Common. Form DJP can be used for either type of co-ownership. The information on LR ownership puts a different light on whether she is legally entitled to make further draw down borrowings from her share of the ownership.

[just_jue]

Thank you I will update you more once I have spoken to a solicitor.

[just_jue]

After speaking to a probate solicitor it looks like we might have a problem.

It seems that the Solicitor that processed the will might not have looked at the deeds of the house and registered mine and my brothers interest in the trust.

After my dad passed his wife has informed the  LR and has just her name on there now and not our interest meaning we have no say over the house as it stands.

I am awaiting a meeting with the original solicitor to see what has happened and how they can sort this out.

Edited April 17 by just_jue
spelling mistake

[just_jue]

While I am waiting for the original solicitor to ring back about the will can I ask.

After my dad passed they were informed about this an released a copy of the will to me and my brother, should they have set the trust up then as they were informed of his passing?

 

Thanks again

[honeybee13]

I would have thought so but I'm no lawyer. What did the one that you spoke to say?

You could also google about how/when a will trust is set up to get more of an idea before you speak to the original lawyer.

HB

[just_jue]

Looking on their website I would of thought that a Life interest trust would of been set up, and they state:

 

"A life interest trust  (also known as possession trusts or interest in possession trusts) be used for preserving assets for the next generation whilst providing a benefit for the current generation. For example, if your home is placed into a life interest trust, then the person with this interest can continue to live there until their death. The house would then be distributed in line with your Will."

&

A trust can be created in your lifetime, which is to take immediate effect (often referred to as a “lifetime settlement”), or it can be created on death through your Will (known as a “Will Trust”).

[just_jue]

I have a letter from the original solicitor that was sent to my dads wife regarding a life interest trust.

They haven't bothered to contact me yet even after asking them to,

It seems they want another £500 plus VAT to setup the trust, but I would of thought that my dad would of sorted all of this out when he went ahead with his last will?

Would I be able to go with another solicitor to set up the trust if the original one insist on more money?

 

Thanks again

[honeybee13]

How much of the documentation have you seen from when probate was obtained? And do you have a copy of the original will? I can't remember.

My thought about you making the decision on your own to go with another lawyer is that three of you are meant to be beneficiaries of this will trust, aren't you? Normally you would need to act together.

HB

[just_jue]

I have dad's last will from 2019 which mentions the trust.

I am in the process of going through probate as the only thing that needs probate is a couple of shares he has (under £3000). 

Speaking to my brother and my dad's wife they wouldn't mind going with another solicitor if we need to pay extra for the trust.