Will and trust question

[Patchworkpatty]

I know it's really difficult to answer questions about Wills without all the details -- and the answer is usually to 'ask your solicitor ' but I thought I would try to see if there was a knowledgeable bod who could point me in the right direction. As my solicitor is old, very grand, patronising and uncommunicative.

My mum died in Feb last year. My dad died a few years ago. Her will left her house to me, my sister (childless) and my two girls.
in trust until they are 25. My mum names a local form of solicitors as executor.
Mum was an accountant and left everything in apple pie order. Literally a file called 'all the stuff you need when I die !) bless her ❤️.. she knew I would be devastated and that this would make it all easier.
Well... he didn't get probable until November. Didn't even ask for my parents marriage cert to claim tax exemption until August. He hasn't had to sell the house as we are keeping it for a rental income that we split between us. He has literally had to gather in money about &100k) value a house and apply for probable.
It's taken 11 months.
Things only happen when I complain to a senior partner. He never returns calls or emails (not that I've called more than 4 times as don't want to rack up fees)

So my question is .. does this person have to be the 'trustee' of my children's inheritance. ? With their portion of the inheritance I can buy our home pay off mortgage and afford to give them a good life without the struggle of the mortgage which is meant to be paid by their father via Cm. (But rarely is leaving us in a precarious position) Obviously they would be named at the land registry as joint owners and I would sell to give them their money when they reach 25 twins) .. or does Mums money for her grandchild have to sit in this solicitors clients account. ?

It's hard to say without seeing the Will and the terms of the Trust... but you could ask that this dude/ firm is not a trustee and ask for two others to be appointed. You would still need to adhere to the terms of the trust though.

Who does the will say the trustees should be?

If the money is to be held until the children are 25 I doubt you'll have access to their portion at all tbh, but again it would depend on the terms.

Thank you so much .. the problem is that there are no 'terms' . The Will just says ' to be divided one third to my daughter xxx one third to Patchwork and one third equally between Patchwork's twins , held in trust until the reach the age of 25 . Nothing about it being discretionary or otherwise - or who is to hold it.
I suppose I am wanting to know, who decides what sort of trust and who holds it - in situations like this.
Can I ask to hold in property that will benefit them ? I currently earn just over 1200 a month. My mortgage is 700 . CM is 700. When he pays it , we are fine. But he often doesn't and we have a suspended possession order. I want to clear the mortgage and can do it with their money added to mine. And give us a much less precarious life. !

You could ask the firm to appoint you as trustees. Alternatively there are some rare instances where the court may appoint new trustees if the relationship between trustees and beneficiaries breaks down completely but this is very very rare and arises more commonly in situations where there is a personal relationship with the trustee. There is also a rule from a case called Saunders v Vautier which allows beneficiaries to end the trust with mutual agreement and take full ownership. However I think there was a requirement that the trustees be of age or possibly it was only a requirement that the trust be vested in them. I don’t remember but if you want to you should be able to access the case on westlaw/lexisnexis.

You absolutely need proper legal advice as to who the trustees of the trust are and whether they have any discretion in how the trust is utilised. Is the law firm the trustee or are you? Or both?

If you are unsatisfied with the response you are getting to your complaints with the solicitor you should speak to the legal services ombudsman.

I would be surprised if you could use the inheritance to invest in your house to be honest (even if it is accessible at all before your kids turn 25) - you would be effectively benefiting by being able to live rent free until your children reach the age of 25. But this is something you definitely need proper legal advice on.

We have no idea who the trustees are. He just transferred my and my sisters portion of the estate . No paperwork , no breakdown of tax, executors costs or details of the children's money and how it is held.

What do I have a right to expect . The twins are 17 btw. 18 this year.
Yes I understand 'I' would benefit. But they would also massively benefit. I could buy them clothes, take them on holiday. But new uniform . Allow school trips etc from my salary rather than none of this when I'm paying the mortgage and trying to bring up 2 teenagers on £500 a month.

Racecardriver I am grateful for your advice and will look at the case suggested.

If the trustees are not otherwise stated they will be the executors. Tbh it’s not really in your daughters interests to give their inheritance to you. It’s a bit unfair of you to ask and no trustee would do that if they were acting properly. If you are not selling the property what is it that you are waiting for? If there is something you need the solicitor to do, call and chase.

I completely agree that in many ways using the money to secure housing for your DD's is a sensible idea, and I'm not at all accusing you of any nefarious intent. I just think you need to have proper legal advice to check whether it is something you are actually allowed to do.

You should absolutely have a clear indication of who the trustees are (although I agree it is likely to be the executors of the will) and the terms of the trust. Different types of trust have very different tax implications for example.

It may be discretionary payments before 25 are permissible for things like university costs for example and that would be very useful to know.

ZsaZsajuju
Can you explain why it would be unfair of me to ask to use their share of the inheritance for their home. I need to understand this. I wouldn't want to do anything that disadvantages them.
At present we live in a house they love. They really don't want to move . Usual reasons for 17yr olds . All friends /school nearby. Lovely house which we could well afford before divorce. I have struggled on for 3yrs to try and keep this for them through the upset of divorce. When ex pays agreed CM we can manage. Not rich , no frills but ok. 7 times this year he has failed to pay. S/e so can't enforce as doesn't earn enough on paper ! .
So mums house is not in expensive part of the country .
Worth 110 k .
That's &36 each third
Cash inheritance £33k each third.
Sister wants to rent out for £600 a month. (£200 each) but understands I may need to sell.
So £33 k of mine
Sell house for another 36k

Then Their £33 k for the house pays off and secured the house they want to stay in. And leaves their portion of the house money in the trust. And leaves my salary for us to live on without worry.
I'm struggling to understand why this would be more unfair on them than leaving it in the solicitors clients account. ? I am not being antagonistic. I genuinely want to know the argument against (this is supposing it would even be allowed) - as I don't want to take advantage but the house stress is probably clouding my view.

House is worth £500k so the money would be safe in it. Plenty of equity . Obviously the simple answer is to sell, and buy another cheaper one but they really don't want to move. It's a small holding and they have their chickens /ducks/ couple of sheep etc so really not easy to relocate and much more than a house to us all .
Ha e thought about just paying off £60k of £100k mortgage which would reduce outgoing to about £400 . Which would be one option. Just seems strange that they can't invest in their own home as surely it would increase their money faster than an account. ?

What will you do when they reach 25 and want the £33k? How will you raise it?

Also unless you sell the property at that time and the price has increased then it's not an investment. Alternatively if the housing market crashes and their share in the property does not reach £33k if you were to sell to raise it, then the trustee could be found to be negligent.

LittleMissPetty
I would sell it when they are 25 as they will want to buy their own homes and that money would be a deposit.
I also do not need a £500k house with just me. I would sell and buy something smaller.
The housing market would have to take one hell of a tumble for me not to be able to repay £33k from a 500k house. !
I know Brexit may scare the market but I think that sort of fall is a bit over cautious.
My plan would be to sell at 25 . Pay the girls back their inheritance plus any increase over the preceding 8 yrs, and buy
myself a 2 bed cottage and put any leftover in bank .

The trustee will have a duty to invest the money though (I think it's section 3 of the Trustee Act 2000). So just giving the girls the original £33k back isn't good enough - there should be be a return on the investment.

Trustees also have a duty to avoid conflicts of interest, so if you are a trustee you do have to be very careful not do anything which may be perceived as being in your own interests rather than solely in the interests of the beneficiaries.

But that's the point I am trying to understand. Using the money that is theirs, to stay in a house that they have been very vocal about wanting to stay in, is surely IN their interests. ? Its MORE in their interests than in mine ! I would put our house on the market tomorrow and be done with the stress of trying to afford something that I can keep going. ITS THEM that have begged me not to sell !

As for the responsibility of investing wisely, of course they wouldn't get back just the money put in. They would get back the increase over the next 8 yrs. No investment is cast iron. But house values in the south east have performed better than any other investment I could think of over the last 20 yrs.

However , that said, I really just wanted to know if it was even possible when trustees weren't named in the Will and the type of trust not specified.

I will speak to a lawyer who specialises in this area who is independent from the pompous arse who has been supposedly dealing with this so far.