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Will and Trust question

(13 Posts)
NappyShedSal Sun 26-Jun-11 21:32:46

I'll try and explain this briefly. My mum remarried 14 years ago (her first husband and my dad died 26 years ago), so when she remarried she took more into the marriage than her new husband who was a divorcee.

My mum died last year but before her death was very open about her will and what me and my sister were to have. She had labelled all the furniture that came from our family originally to make sure that me and my sister knew what was ours. Almost every other visit was spent explaining which wedding ring / engagement ring / silver tea set we were each to take etc etc. But also explained that her and her husband's will's were identical - all assets etc were to go to the remaining partner for as long as they were alive. In order to safeguard things the assets (ie house, savings, premium bonds etc) were to be split and 50% put in a trust to ensure that each set of children would eventually get what they were entitled to. Does that make sense so far?

But me and my sister assumed, and I know that my mum intended, that things like her jewellery from before this second marriage and all her silver teasets / antique furniture, would come straight to us - they had come from "our" family originally. But my stepdad is now in the process of having everything valued in order to work out how much goes into the trust, and all this stuff is being included too in this valuation. I have tried to work out whether this means me and my sister lose out or whether it all works out in the end. But every way I do it I always seem to work out that me and my sister will only end up with half teh value of all this jewellery etc and my step-brother and step-sister will end up with half of too, which seems really unfair.

I do understand that this is what teh will said, but I know that my mum had not appreciated what it actually meant when the time came (based on her numerous conversations with us to get as much sorted beforehand). She would be so upset to think that neither me nor my sister have had a single piece of her jewellery as her husband says it all has to be valued to go towards probate. And then I think if we want any of it we have to buy it at it's valuation price and the money is put into the trust.

Is there anyone out there who understands this, and can tell me whether this all sounds right? And is there anything that I can do to ensure that me and my sister get all teh stuff that came from our "original" family?

Collaborate Sun 26-Jun-11 23:08:57

Your second para contradicts itself. Either all the estate goes to the surviving spouse for life only (then presumably to you) or were to be split and 50% put in a trust to ensure that each set of children would eventually get what they were entitled to. Both can't apply.

NappyShedSal Mon 27-Jun-11 06:50:08

Ah yes! 50% is being put into a trust that my stepdad can use to live on, and the other 50% is his. When he eventually dies me and my sister get whatever the trust is worth now ( i have no idea how my stepdad gets to use the money in the trust, or what happens if he spends too much)

Collaborate Mon 27-Jun-11 09:42:58

The jewellery will have to be sold if the will was that simple. Half will go into the trust and the other half will belong to your step father. He may presumably want to come to some agreement with you. Persumably the will doesn't mention personal belongings at all.

mumblechum1 Mon 27-Jun-11 11:32:05

OP, I'm afraid that unless there were specific gifts of jewellery, furniture etc either in the will itself or in a separate letter of wishes (which should have been referred to in the will), then you can't have those items unless you arrange to buy them at market value from your stepdad, or unless he kindly donates them to you. He'll still have to get them valued for inheritance tax purposes.

It sounds as though your mother didn't make her wishes to her will writer clear.

pippala Mon 27-Jun-11 15:40:07

I am also going through probate. except that my Mum and step Dad have both recently died.
You need to talk to a probate lawyer quickly as your SD is taking advantage of you.
The items your Mum set aside for you are classed as personal chattels and are not subject to IHT or probate!
My Mum also left certain personel possesions to me and SD left to his to SB and SS.
These we took from the house although we had to give a valuation to the solicitor for probate as they are personal chattals they do not get transferred from one estate to another.
You do not have to buy the value of these they are yours to have now.
Personel chattels are not normally written down individually in a will. My Mum's will said personel chattels to my daughter Pippa but it isn't always put in a will. That is why she earmarked them for you before she died.
I expect your SD wants to keep them so wants value them and put the money in the trust fund.
That is not what your Mum wanted so either take what is yours or go and see a probate solicitor. The 1st hours advice is normally free.

Collaborate Mon 27-Jun-11 16:37:51

pippala that's wrong. The will deals with all assets, including personal belongings. To take something that doesn't belong to you is theft.

Crikey!

Mumblechum is a probate specialist.

pippala Mon 27-Jun-11 17:18:34

As i had said I am going through probate now.
Both I and step siblings took the personal chattels in Feb. Mine valued at £500 theirs at £50,000
Both he and my Mum told us who's were who's etc
Theres include lowry prints, gun collection,kuggerands etc
mine just cd's , furniture and lilliput lane houses.
Both our solicitors say they come under personel chattals and are exempt from IHT or probate.
Prehaps both our solicitors are wrong?
The fact that op Mums labelled furniture and told them about certain items the step Dad should honour her wishes.
She might not have written those items in her will but he should know what her wishes were?
She owned them before the marriage so they are not his just as my step Dad's chattels were not mine to take!

prh47bridge Mon 27-Jun-11 17:56:19

Can I suggest you take a look at what HMRC say about IHT here. Certain gifts are exempt from tax but that's all. Everything else must be included.

And Collaborate is right. The will deals with all assets.

By the way, Collaborate is a solicitor and Mumblechum is a probate specialist. They know what they are talking about.

mumblechum1 Mon 27-Jun-11 17:57:30

Pippala, the rules on IHT on chattels are that they are subject to IHT except in fairly unusual circumstances, or where the joint estate (ignoring death in service benefits and life insurance which come under separate trusts for tax purposes) comes to less than £650,000.

Collaborate is correct, if there is no specific gift to the OP then she has to rely on her step father's generosity. I would expect that her mum's will says words to the effect of "I GIVE my residuary estate to my husband but if he predeceases me then my residuary estate shall be paid to x y and z in equal shares".

If she didn't precede that clause with a specific gift of personal belongings, then "residuary estate" means ALL of her assets except for any debts, IHT,pecuniary (cash) legacies, funeral and testamentary expenses.

mumblechum1 Mon 27-Jun-11 17:59:37

<<disclaimer, I wouldn't call myself a probate specialist, in fact I just do family law and will writing. I'm obv. trained and qualified in probate, but don't practice it day to day>>

Collaborate Mon 27-Jun-11 19:53:17

More specialist than me then (though my wife is a STEP member, so I cheat).

NappyShedSal Mon 27-Jun-11 20:15:17

Thankyou everybody! What a shame that my mum's solicitor didn't make sure the will was clearer then. I know that she assumed that me and my sister would automatically just get what was from our original family. There's never been any question of my stepfather keeping these things. But it does seem mighty unfair that we will only get half their value. I don't mind him getting half but what I don't see is fair that his children will benefit in the end. I can't afford to buy any of it from him, because I don't get any money from my mum's side until he dies.

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