The Lemon Fool

An elderly relative of mine made out a "Last Will and Testament" which was very brief but a little vague. It basically names several people who are to get nothing and then goes on to name me to look after her bank books and cash.

There's no house involved, all bills including funeral were paid for before she moved into a nursing home and all of her physical possessions were given away before she died. All that is left is money in cash and banks amounting to several thousand pounds. Problem is, she doesn't actually say where the money should go to and I know she has given substantial sums to others before she died.

I'm taking it as loosely meaning that I should be both executor and beneficiary but is it safe to follow that path? I'm sure it is roughly what she intended but it is obviously open to interpretation. Feel free to discuss the morals for your amusement but I would like to know where I stand legally without actually having to pay the bulk of the cash to a solicitor.

foundone wrote: I know she has given substantial sums to others before she died.

I can't tell you if you have standing as an executor. But if those "substantial gifts" exceed the amount of the nil-rate band and were made within the last seven years, then inheritance tax might become a factor. As executor it would be your job to document those gifts and identify the recipients. And those recipients might not to be keen to co-operate because, with little money in the estate, they'd be liable for the tax.

And there are a few circumstances where an executor can become liable for the tax. So in seeking to determine whether you can act as the executor here, you might also want to determine if you want to.

foundone wrote:An elderly relative of mine made out a "Last Will and Testament" which was very brief but a little vague.

...

Probably best to try and provide precise extracts on this board, such that the experts can attempt to establish the terms of the Will and, perhaps, to try and establish if it is a valid Will.

PD

An idle question really: How is an executor supposed to identify whether cash withdrawn from a deceased's account has been given away?

I often drive a disabled neighbour to his bank where he withdraws literally thousands (£5k on one occasion I know of). I haven't a clue what he does with the money, but having read the above I would imagine his executor is going to have a few problems if my neighbour pops his clogs anytime in the next seven years.

foundone wrote:An elderly relative of mine made out a "Last Will and Testament" which was very brief but a little vague. It basically names several people who are to get nothing and then goes on to name me to look after her bank books and cash.

The first thing you have to establish is whether the "Last Will and Testament" is actually a valid Will. There are a number of formalities that have to be complied with, and without actually seeing the document it's impossible to say one way or the other. But a simple test to apply is whether it appears to have been signed in the presence of two witnesses, who have both signed the Will as well as your relative.

If it does pass this test then the Will may be valid. You then have to decide whether your appointment as executor is valid. Although you may not have been specifically appointed as executor the fact that she's named you to look after her bank books and cash means that you could be a validly appointed executor "according to the tenor of the Will."

However, even if you have been validly appointed you would have to decide if you really want the job. From what you say the Will (if indeed it is a Will) is a mess, and the fact that she has made substantial gifts means that you will probably have to complete an IHT400 form to obtain probate, which is a major PITA - https://www.gov.uk/government/uploads/s ... IHT400.pdf

If it isn't a valid Will and there is no other valid Will in existence then the estate would be governed by the Intestacy Rules. (I was just about to insert a -----------------------------> - old habits die hard!) In simple terms this means that the estate goes to her next of kin, and you can check the exact provisions here - https://www.gov.uk/inherits-someone-dies-without-will

Realistically, if the `Will' passes the initial test mentioned above it would be sensible to obtain proper legal advice from a solicitor. If the advice is that the Will is valid their charges can be paid out of the estate, and in any event I would expect any decent solicitor to give you an initial opinion free of charge (it's not entirely charitable - they will do so in the hope of being instructed to sort it all out!)

WrenChasen wrote:An idle question really: How is an executor supposed to identify whether cash withdrawn from a deceased's account has been given away?

I often drive a disabled neighbour to his bank where he withdraws literally thousands (£5k on one occasion I know of). I haven't a clue what he does with the money, but having read the above I would imagine his executor is going to have a few problems if my neighbour pops his clogs anytime in the next seven years.

He could have a nefarious vice that he likes to fritter away his money on, based on the principle that you can't take it with you. But that should be a secret that is kept.

The simple answer is that an executor is probably not going to be able to make sense of it, unless someone closer to the deceased knows all the details. It's obviously possible that he is making large gifts to his beneficiaries with the intent of avoiding inheritance tax. If such a conspiracy exists and I as the executor got a whiff of it, I'd recuse myself. (That actually happened to me - long story for another time).

Since you do him a lot of favours, perhaps he will offer you some of this largesse?

Clitheroekid wrote: But a simple test to apply is whether it appears to have been signed in the presence of two witnesses, who have both signed the Will as well as your relative.

On the off-chance that it is a Scottish will, one witness is then enough.

foundone wrote:All that is left is money in cash and banks amounting to several thousand pounds. Problem is, she doesn't actually say where the money should go to and I know she has given substantial sums to others before she died.

I'm taking it as loosely meaning that I should be both executor and beneficiary but is it safe to follow that path? I'm sure it is roughly what she intended but it is obviously open to interpretation. Feel free to discuss the morals for your amusement but I would like to know where I stand legally without actually having to pay the bulk of the cash to a solicitor.

Well it doesn't look good. I guess it would make a difference if it was £4K or £10K but even so, do you need that sort of money? Being realistic, I would have thought that the bulk of it in either case would end up in the hands of the legal profession in one way or another. Most likely all of it.

Personally I'd just walk away and let someone else get on with it. Preferably the previous beneficiaries!

- K