Contents of Wills

Executors, trustees and guardians—who are they?

An executor is the person appointed by the Will to administer the property of the testator. Failing to appoint one or more executors does not invalidate a Will; however, such an omission is inadvisable as it would result in a period after the death when no one is in control of the testator's estate and affairs. A testator may appoint any number of executors but probate will not be granted to more than four in respect of the same part of the deceased's estate.

When a client is considering appointing a solicitor or firm as executor(s) they must be provided with sufficient information to make an informed decision about the appointment and its related costs.

The court has power, if necessary, to remove a personal representative (PR) or all of the PRs and to appoint a person to act in their stead, either before or following the grant of representation.

Where a Will trust is to be created, it is, in general, convenient to appoint the same persons as both executors and trustees. The functions of executors and trustees are different

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All in? Court confirms when a settlement is 'made' for the purposes of excluded property (Accuro Trust (Switzerland) SA v The Commissioners for HMRC)

Private Client analysis: This case considered the meaning of 'relevant property' under the settlements regime of the Inheritance Tax Act 1984 (IHTA 1984) and, in particular, the time at which this definition is to be tested. The question arose as to whether the trustees of an offshore trust established by a non-UK domiciled settlor were subject to the UK settlements regime in respect of property added to the trust after the settlor became deemed domiciled in the UK, or whether they were exempt from such charges as the trust consisted solely of excluded property. The First-tier Tribunal (FTT) held that whether trust property is excluded property is based on the status of the trust at the time that it was established, not at the time that the property in question was added to the settlement. As a result, the trust in this case did consist solely of excluded property and no inheritance tax (IHT) charges arose as a result of either the ten-year anniversary or capital distributions. The FTT was also asked to consider whether their jurisdiction was appellate, or supervisory only. The FTT held that, while their jurisdiction was supervisory, the questions raised by the trustees were relevant in establishing whether HMRC had acted reasonably and that the outcome (ie that the paid IHT should be refunded and that no further IHT was due) would be the same in either case. Written by Katherine Willmott, senior associate solicitor at Foot Anstey LLP.

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