What was the point in DMs will?

[OneTiredSheep]

DM died suddenly recently, so I admit I am still clouded by grief and may not be thinking 100% clearly. She named me as executor of her will but I am struggling to make sense of it, as she seemed to make specific decisions, but they don't seem to make any difference.

She and DF (married) bought their house 10 years ago, as tenants in common with equal shares. House now worth about £500k.

Shortly after buying the house, they had mirror wills drawn up including a 'Discretionary Nil Rate Trust', leaves to DF, with executors me and DSis (she cannot help due to health issues). But there is a page at the beginning that says DM 'can't fetter our decisions', its just guidance.

DF is moving in to care home, so needs to sell the house to pay for fees (fine, I can't care for him). Having spoken to the solicitor who drew up the will, we need to get probate to sell the house (also fine, I understand why) but then everything just goes to DF and can be used for care fees. So what was the point in buying as TiC, and having a trust? It doesn't seem to have made any difference to the outcome? They may as well have been joint tenants with a normal will. The solicitor said it was to avoid inheritance tax, but there is none between spouses?

Is it possible for me to pay a different solicitor to explain this all to me? Would they think I'm mad?

Before anyone accuses me of being 'grabby': yes perhaps I am, but only on behalf of my younger sister who has a life limiting illness - a financial inheritance that hasn't all gone on care fees would mean we could purchase a property for her children to have a bit of security.

From what you've said, everything doesn't go to your DF. The first £325,000 of your mum's estate goes to the trust and you can decide if your DF gets anything.

Who are the named beneficiaries of the trust? Is it DF, you and sister?
And you and your sisters as trustees with discretion on what can be paid?

If that is the case, the position seems to be that your mum's share of the house (250k) and anything else comprising her sole estate up to total 325k goes into the trust without formally passing to your dad, though you can still make payments to him if you see fit.

So he needs to sell the 500k house for care. He gets 250k (his share) to pay for care. The trust gets 250k which does not have to be used for his care unless the trustees opt for that.

Whether the trust can pay out to sister for a property before DF passes depends on the terms of the trust and what is permitted ie there may be a provision that the trust can't pay out significant sums and be dissolved until DF has died. Have a proper read and if still in doubt seek one off legal advice to walk you through it.

I think that's roughly it. The point of limiting the trust to the nil rate band is (i think) to save the iht element to benefit you and sis. As anything over which passes directly to dad is nil rated anyway because of the spousal exemption. The point of the trust is for the trustees to use discretion as to how best the funds are to be used/allocated.

Thank you both, yes, DF, DSis and I are names as beneficiaries, but DSis and I are Trustees.

I hadn't really thought about buying a property before DF dies, it was more about knowing there will be something for my neices, giving us all some peace of mind - DM told me a few years back that they'd be OK, she'd sorted it, but I couldn't see how.

Would it be normal to approach a solicitor local to me to talk me through the whole will? Could someone like the Co-op advise?

I think that's a good idea, it would set your mind at ease and should be a straightforward and not time consuming task for a solicitor with probate experience. Co-op fine assuming the sol is a probate one.

It wouldn't be an odd request in any way. As executor and trustee you have a responsibility to do things properly and if you need a bit of guidance that's entirely reasonable. Probably the sols fee could be paid from the trust funds (but make sure you check!)

(I'm a solicitor but not a probate one so I'm typing nervously!)

@honeylulu is correct. The nil rate discretionary trust was effectively set up to gift the tax free amount to you and your sister (and your DF). The trustees of the discretionary trust have full powers to decide what happens next with that portion of the house. You will need probate first.

I think appointing a probate solicitor to help you is a good idea.

It seems the solicitor who drew up the will had a specific scheme in mind. They may be right as to where the estate goes. Your own solicitor is probably obligatory. You may be able to make a claim against the estate for a dependant in financial need but this could get very involved very quickly. Good luck.

I would approach Cirizens Advice to get them to explain it to you. They have experts in different fields

I really would use an experienced solicitor - the same company as the probate solicitor should have been good enough.