Q&As

Where a nil rate band discretionary trust is created by Will, but following the testator’s death the executors (who include the testator’s surviving spouse) consider it is not necessary or useful (because the estate is within the nil rate band in any case), what document should they use to bring it to an end? Who will need to sign the document?

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Published on LexisPSL on 16/02/2017

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • Where a nil rate band discretionary trust is created by Will, but following the testator’s death the executors (who include the testator’s surviving spouse) consider it is not necessary or useful (because the estate is within the nil rate band in any case), what document should they use to bring it to an end? Who will need to sign the document?
  • The estate is still in administration
  • The NRB discretionary trust has already been constituted

In conducting our research we have focussed on the options available to the executors/trustees assuming that they are able to deal with the trust within two years of the testator’s death.

The estate is still in administration

If the estate is still in administration and the nil rate band (NRB) discretionary trust has not yet commenced, the whole class of discretionary beneficiaries (if they are adult, of sound mind and in agreement) may enter into a deed of variation with the executors such that the Will is read as if the clause settling the NRB discretionary trust was never included (or such variation as the parties wish). By way of example, see the following Precedents:

  1. Lexis Smart Precedent: Deed of variation of dispositions effected by a will: Williams on Wills Precedents [241.25]

  2. Variation of will by legatees and residuary beneficiary to vary the estate by means of a s

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