Legal Q&A

Where no particular limitation exists within the deputyship order concerning the deputy’s sale or acquisition of land, the stated general authority will typically and ordinarily encompass fully the authority to purchase and dispose of property for the benefit of the protected person ( P)......

If an individual does not exhaust their inheritance tax nil rate band ( NRB) on death—perhaps because a large share of the estate passes to a surviving spouse or civil partner—the Inheritance Tax Act 1984, sections 8A to 8C, sets out provisions allowing the unused NRB, wholly or partly, to be transferred and applied to increase the survivor’s NRB when that person dies. The mechanism preserves a proportion of the first estate’s NRB, which can then uplift the allowance available to the surviving spouse or civil partner on their death. The uplift is determined by a statutory calculation in IHTA 1984, section 8A(3) and (4)......

If the deceased died intestate Parts III and IV of the Administration of Estates Act 1925 ( AEA 1925) apply to: all movable property belonging to the deceased, wherever it is located, provided the intestate was domiciled in England and Wales; and all immovable property of the deceased situated in England or Wales, whether or not the deceased was domiciled here Who inherits the residuary estate on intestacy is determined by the estate’s value and by which categories of family members have survived the deceased. Where a spouse or civil partner survives, he or she is entitled to the statutory legacy (of £250,000 where the deceased also left ‘issue’)......

For the purposes of this Q& A, it is assumed that: the leasehold property forms part of the unadministered Estate the Estate bears the primary responsibility to pay the service charge the beneficiaries in occupation have a right to occupy the leasehold property Whilst the Estate is being administered, legal ownership of the deceased’s unadministered assets is vested in the personal representatives ( PRs) for the purposes of administration and to carry out that administration. In the meantime, no beneficiary, whether taking under the deceased’s Will or by intestacy, has any proprietary interest in any particular or identifiable asset comprised within the unadministered Estate, nor any enforceable claim to such an item. See Practice Note: Beneficiaries’ rights and remedies. The PRs hold extensive powers to administer and manage the deceased’s Estate......

Practice Note: IHT—gifts with reservation of benefit Please consult the Practice Note, which summarises the GROB rules in section 102 of the Finance Act 1986 ( FA 1986), detailing when a transfer can fall within a reservation of benefit, the exceptions to that framework, and the way the regime operates in practice. Because the donor holds the property in co-ownership with the donees, the terms of FA 1986, s 102B assume particular importance in this context and should be carefully considered here accordingly......

Ordinary residence Section 39(4) of the Care Act 2014 ( CA 2014) states that a person provided with accommodation under section 117 of the Mental Health Act 1983 ( Me HA 1983) is, for the purposes of the Act, to be treated as ordinarily resident in England or Wales, and the local authority accordingly has a duty to arrange the services required by Me HA 1983, s 117. That responsibility continues until the integrated care board or Local Health Board and the local social services authority are satisfied that the individual no longer needs aftercare... Although CA 2014 does not set out a definition of ordinary residence, the phrase bears its everyday meaning. In this context, ordinarily resident refers to a person’s home in a specific place or country which they have chosen voluntarily, and it involves matters of both fact and degree......

Where a surviving spouse holds an immediate post-death interest ( IPDI) in a qualifying residential interest (see section 8H, Inheritance Tax Act 1984), their residence nil rate band ( RNRB) can be increased by the transferable residence nil rate band ( TRNRB) of the predeceasing spouse, provided a claim is made in such circumstances as appropriate......

An unincorporated association is not a legal entity In principle, it lacks legal personality and therefore cannot bring or face proceedings in its own name; this was the stance in London Association for Protection of Trade v Greenlands Limited. The position was examined in detail in Chancellor, Masters and Scholars of the University of Oxford v Broughton, a matter arising from a campaign by the Animal Liberation Front and related bodies. The conventional course is to seek a representation order, allowing a named member or office-holder to be joined as a party ‘on behalf of the members of the association’. Yet time pressures—particularly an approaching limitation deadline—may make obtaining such an order impracticable, prompting a prospective claimant to ask whether the association can be joined in its own name. As recorded in University of Oxford, there have been instances where the court has in fact made orders...

The rules governing making a domicile election are contained within statutory sections 267ZA and 267ZB of the Inheritance Tax Act 1984 ( IHTA 1984)......

As the individual was not domiciled in any part of the UK on death, only assets located in the UK may fall within the scope of inheritance tax ( IHT). Assets situated outside the UK are treated as excluded property under section 6 of the Inheritance Tax Act 1984 ( IHTA 1984) and, accordingly, do not comprise the deceased's estate as defined by IHTA 1984, s 5 ......

Minor children only We direct you to the Practice Note: Intestacy—priority to apply for grant— Q& As (see ' Particular relatives and entitlement to grant on intestacy', ' Minor children only'). Where the person who would otherwise receive a grant is a minor—for instance, where the deceased is survived by minor children but has no spouse or civil partner—rule 32 of the Non- Contentious Probate Rules 1987 ( NCPR 1987), SI 1987/2024, stipulates that a grant of administration for the minor’s use and benefit, limited until they attain the age of 18 years, is to be issued to a parent of the minor or to another person who holds parental responsibility......

This Q& A proceeded on the basis that the life tenant neither arranged for an independent person to read the document to him nor obtained separate legal advice about it......

Apart from minors and those lacking mental capacity, a testator is, in principle, generally free to choose any executor. That said, a court is unlikely to grant representation to a bankrupt or insolvent individual, save where the testator was aware of the bankruptcy when naming that executor in the Will. At present, there is no bar on appointing a personal representative who has been discharged from bankruptcy or insolvency, this extends to someone released from an individual voluntary arrangement. Refer to Practice Note: Definition of a personal representative, particularly the section ‘ Bankruptcy and PRs’ for further guidance and detailed discussion on this......

The following assumptions can be taken from this question: first, that the person in question has been duly named to act as executor under a valid Will; and secondly, that they have handled all of the estate's assets before any formal grant has been obtained......

Inheritance tax ( IHT) treatment of the loan The IHT consequences for a loan turn on its precise wording and conditions, such as whether the borrowing is secured. You should also review the lender’s Will, in case the testamentary provisions discharge the liability. In practice, the difference between classifying the loan as an asset of the estate on death or as a failed potentially exempt transfer immediately before death may, in some cases, make no difference to the IHT due. To reach the correct analysis, the language of sections 4 and 3A of the Inheritance Tax Act 1984 ( IHTA 1984) must be considered. In particular, section 4 (transfers on death) provides that IHT applies as though, immediately prior to death, the deceased had made a transfer of value—i.e. a deemed transfer immediately before death that triggers the IHT charge......

A nil-rate band discretionary trust A nil-rate band discretionary trust is a common method for reducing inheritance tax. It typically concerns property held by two people (most often a husband and wife as co-owners). They must own the home as beneficial tenants in common, meaning that any existing beneficial joint tenancy has to be broken. Each then executes a Will so that their share of the property, up to the inheritance tax nil-rate band, is directed not to the spouse but into a discretionary trust. The usual discretionary beneficiaries are the surviving spouse and the children. Instead of the survivor taking outright the other’s share of the property (whether by survivorship where it was a beneficial joint tenancy or by a legacy), the trust retains that share and, on the death of the survivor, the portion within the trust does not fall into the estate for...

Rule 10(2) of the Non- Contentious Probate Rules 1987, SI 1987/2024 ( SI 1987/2024, r 10(2)) states that a district judge or a registrar may authorise a facsimile copy of the will, and any codicil, to be duly marked in place of the original......

Individuals who have the right to obtain a grant in an estate may opt not to extract it. It is generally uncommon for those entitled to secure letters of administration for an insolvent estate to proceed, save where commencing, or defending, proceedings on behalf of or against the estate could deliver a material benefit to it. Where such a benefit exists, the persons listed in the Non-contentious Probate Rules 1987 ( SI 1987/2024), rule 22, may apply. If there is an eligible person within that list who is able to take a grant, they are entitled to renounce that entitlement, and that may well be the safest course in circumstances where there is an insolvent estate in such cases......

See Practice Note: The meaning of ‘children’ in Private Client and Chapter 75 Adopted children: Williams on Wills. It is prudent to note carefully how using the term ‘children’ shapes, in practice, the practical effect of any gift left to children. At common law, a reference to children was presumed to mean legitimate offspring only; by definition this excluded illegitimate and adopted children as a matter of course......

Discretionary power objects within a trust have only restricted rights...