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Settling temporal estates

by
19 October 2018

What considerations need to be taken into account when choosing executors of wills and guardians, asks Huw Spanner

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Executors have the job of valuing the estate of the deceased, for the purposes of inheritance tax

Executors have the job of valuing the estate of the deceased, for the purposes of inheritance tax

“TAKE no thought for the morrow,” Jesus said in the Sermon on the Mount — but the Church has always held that ideal of the carefree life of the Spirit in tension with the Christian duty of careful stewardship. Thus, the Book of Common Prayer instructs that the people “should often be put in remembrance to take order for the settling of their temporal estates, whilst they are in health”.

Naomi Pinder, a solicitor with Catherine Higgins Law, who is a member of the diocese of Liverpool’s Stewardship Group, says that it “can be very off-putting for congregations if preachers keep going on about this from the pulpit”. Nevertheless, she underlines the importance of “not leaving your affairs in a mess”. More than two-thirds of people die without leaving a will.

An essential element in writing a will is the appointment of one or more executors. “You need to choose people who are trustworthy,” Mrs Pinder advises, “and they’ve got to have the time to do it, because it is quite time-consuming. It’s commonest to appoint your children, if you have any, but don’t do that if they don’t get on; they won’t get on any better after you’ve died.

“I have had a case where three children appointed as executors didn’t get on; it all went to court, and I ended up being appointed and having to deal with their mother’s ashes.”

Think carefully before appointing a solicitor as your executor. “Yes, solicitors provide a professional service, but it comes at a cost. You might want to do so because you’ve got a complicated estate, or because you can’t find anybody else who is suitable. In that case, appoint the solicitor’s firm rather than a named individual solicitor, because, by the time you have died, they might have retired, or become incapacitated, or died themselves. That’s really important. Also, make sure that your estate is sufficient to cover their legal fees and still provide for the legacies.”

That said, she points out that many people who are poor in life are “quite wealthy in death, if they owned a house or had life insurance”.

Being an executor is “a very big legal responsibility, and can become a burden”, she says. “It’s a big ask.” Executors are entitled to claim expenses, and can, of course, be beneficiaries of the will.

“If people want to appoint a friend as executor, without making them a beneficiary,” Mrs Pinder says, “I point out: ‘They love you, but they don’t love your estate, and there’s a huge difference. When you die, from a legal point of view you become money and property; you’re not there any more. And, if there’s a house to dispose of, say, it could be eight to 12 months before they can wind up your estate; and, if there is any arguing between relatives, they would need to deal with that.”

 

IF YOUR estate is not to be wound up after your death — for example, if you have a child or children aged under 18, or you wish to provide for someone who is disabled or vulnerable — you need to appoint two trustees to look after your assets and manage them on behalf of the beneficiaries. They would invest the money and make payments of income, or capital, at their discretion, for the maintenance, education, and benefit of your child(ren). Again, they would need to be people who are trustworthy, and who will have the necessary time.

istock Promising to become the guardians of another family’s children should not be done lighlty

For children aged under 18, you also need to appoint guardians who, in the event of your death, will have physical custody of your children and legal parental responsibility for them. You need to consider the practicalities, Mrs Pinder says. For example, it would help if they lived close to you, and already had contact with your family. “I talk to young parents a lot about life insurance. If you’re expecting somebody to look after your children, they will need money. Bringing up children can be very expensive.”

Many young parents neglect to make wills because they cannot agree on whom to name as guardians. “Mum will say, ‘They should go to my sister,’ and Dad will say, ‘They should go to my brother,’ that sort of thing. It is really important to sort this out, or it can end up with the local authority taking care of the children.” The overriding duty is to act in the best interests of the children, who, as orphans, would be in a difficult situation.

 

THE responsibilities of the executors of a will include: making an inventory of the dead person’s estate (that is, their property, money, and possessions), estimate and report its value to HM Revenue and Customs, and, if applicable, pay the inheritance tax due; ensuring that all other debts, bills, and expenses are paid; distributing the remainder of the estate in accordance with the will; and keeping a careful record of their actions.

At least one executor will need to “apply for probate”, which will confirm the legal authority granted to them by the will and enable them to deal with the estate. If someone does not want, or is not able, to act as executor, they have three options: to “renounce” the responsibility entirely; to reserve their right to apply for probate at a later date (for example, if other executors drop out); or to appoint an attorney to act on their behalf.

Dorothy Price, who has acted as executor four times, says that the best source of free advice is the government website www.gov.uk/wills-probate-inheritance, which “pretty much talks you through the whole thing”. Anyone else will charge, she warns.

The government advise that you review your will every five years, or after any significant life change. Alterations to an existing will can be made by writing a codicil, instead of completely rewriting one, which must be witnessed in the same way as a will.

 

November is Will Aid month, when participating solicitors will draw up a basic will for a donation to several charities: www.willaid.org.uk

 

THE EXECUTOR: Dorothy Price

A selection of the paperwork Dorothy Price faced as executor of her friend’s willDOROTHY PRICE* has acted as an executor four times: for her mother and father, a friend, and a cousin once removed.

“My brothers and I were executors for my parents,” she recalls. “My brothers didn’t want to do the paperwork; so I took care of that while they sorted out all our parents’ stuff. My son was amazed that we didn’t all fall out over it, and we nearly did; but we’re a polite family, and we don’t do long-term breakdowns in relationship.”

Her friend’s estate was “fairly easy” to administer, as she had left almost everything to her husband. Even so, to inherit their house, he had to have his identity confirmed by a lawyer. “That was a nightmare, as he was old and sick. Finally, I sent the confirmation to the Land Registry — and they lost it. You have to deal with all that.

“My cousin left endless little notes saying who was going to have this ornament and who was to have that one, and they contradicted one another. However, you are only obliged to do what is in the will. She left someone a set of really tatty 1965 London telephone directories. I haven’t heard back from this person; so my son’s put the directories in his loft. I think you have to keep things for seven years.

“A charity told me that their bank had lost the cheque that I had sent them. I sent them another one, only to discover that they had cashed them both. Eventually, they returned the money, after I wrote to one of the directors, but I was pretty angry by the end of it.”

You can get someone in to do the valuations, but you don’t need to unless it is big money. My cousin had some quite decent books on her shelves; so we valued them at £10 a foot. We just guessed the value of her china. We got three estate agents to value her house.

She also advises executors who have to sell a property to employ a local lawyer with knowledge of the local market rather than one of the big online firms.

One potential pitfall, Ms Price says, is that the executors of a will have to pay at least a portion of any inheritance tax due before they can get the “grant of probate” that they need to get access to the deceased person’s estate.

“There is a form you can fill in to get the bank that is holding their money to pay the tax, but if there isn’t much cash in their account, you may have to take out a loan.” If that is problematic, she says, “you can always stand down from being an executor if you want to, and then the lawyer will deal with it, and it’s up to them how they get the money.”

There are dozens of different reasons why people agree to be executors, she says. “I did it for my friend because it seemed to be something I could do for her. I did it for my cousin because I felt that I owed her, although, as she got older, she became someone I didn’t like very much. When I was a child, she had been one of the few people I can remember who appeared to take a genuine interest in me, and she was also very kind when my children were young.”

What advice would she give to someone who had been asked to be an executor? “I would ask a few questions about the kind of person they would be doing it for, and the state they were likely to leave their affairs in.”

Being an executor is “not a desperately rewarding task”, she says, and it can prove to be onerous. Her cousin’s will “took so much time and effort: it meant a year of not doing anything in my garden. I might not have taken it on if I’d known.”

She has, however, found the experience generally satisfying. And there can be “odd bonuses”, she says. “When we cleared out my cousin’s stuff, we found a portrait she had painted but had never finished. As a result, I have now met the sitter’s daughter, and we have become friends.” And she is still laughing about the telephone directories.

* The name has been changed

 

THE GUARDIAN: David Doggett

David DoggettDAVID DOGGETT was 42 years old when he wrote his first will, prompted by a solicitor’s free offer. His older brother, Richard, happened to be writing his at the same time. They were both married and settled, each with three children and a four-bedroom house, and so each couple agreed to name the other as guardians of their children.

He didn’t think twice about making such a commitment, he says. “It seemed a bit of a waste of time, to be honest. At that age, you think you will live for ever. And, even if something happened to Richard or his wife, the idea of both of them being killed was totally outrageous.”

Two years later, he had just come home from church when the phone rang. His brother and sister-in-law had been killed in a car crash. They had just dropped their middle son off at a music school in Suffolk. The other two had been in the car with them, and were now in hospital.

“As the boys had been badly injured,” he recalls, “nothing could happen quickly. My wife, Margaret, and I were very, very thankful for the breathing space. We hardly knew the boys — we’d met them at a wedding or two, maybe — but, even if I had known them well, I still wouldn’t have been able to guess what the issues would be. It was a question of taking each day as it came.

“We had a solicitor who took care of the legal stuff — although, technically, that was my responsibility, too, as well as organising the funeral — but we didn’t really get advice from anybody. It was a complete unknown. I would never have imagined that I could be so scared.”

What frightened him most, he says, was that in the week the accident happened he had been made redundant. “I was straight down to the employment office. I looked for something that was within ten minutes of home, so I could get back and help whenever necessary, and that wouldn’t involve overtime. I was extremely lucky to get the job I still have.”

His brother’s eldest son had learning difficulties, and could be very challenging. “At 15, he was a big lad, and he could do some fairly extreme things,” Mr Doggett says. “There was no way we could give him the 24-hour care he needed.” They approached Coventry Council, who, he says, “were absolutely fantastic, and found him foster parents who were ready for the sorts of behaviours he had. They did all the right things.”

The other two boys, then aged 13 and eight, came to live with his family. It was a learning experience for everybody. “The five children stopped being children and sort of became part of ‘the team’. Three of them had to share a bedroom, and I learnt later that that caused a lot of bad feeling, but they sorted things out themselves. The fact that they had all had a Christian upbringing, and good, understanding parents probably made all the difference. Nobody had a high horse, and no one was particularly selfish.”

He and Margaret stopped being parents in the same way. “As a parent, you find a balance between supporting your children and disciplining them, but we didn’t know how my nephews had been disciplined. We had to treat all of the children equally; so we just had to be gently encouraging all the time, and hope they would go in the right direction. I found it unnerving.”

The local education system was very helpful. “The primary school that my daughter was at said that Mark could come, too; and the secondary school that my boys were at accepted Chris. I found out much later that the governors had said no, because the school was full, but there was one woman who managed to talk them round. That made a vast difference to us, because it meant that the children could all walk to school together.”

No money had been set aside in the will for bringing up the boys. “I was one of Richard’s two executors, with a friend of his, and we agreed to find a small sum out of the estate.” Meanwhile, the boys’ inheritance from their parents was tied up for many years by a court case between the insurance companies concerned in the car crash.

“Eventually, we all agreed — the executors, the solicitors, and the wider family — that the estate should buy the house next door to ours, so that, finally, we had twice as many bedrooms and a lot more living space. Five teenagers take up a lot of room.”

His advice to anyone naming a guardian in their will is: Choose a married couple. “They need to be married, because they would have to work as a team, and it would take real commitment.” And, if you are asked to be a guardian yourself, “Don’t say yes lightly, on the assumption that it will never happen. You never know.”

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