NRBDT Will - no executors, no trustees and surviving spouse now wants to sell

Trusts Discussion
1

A + B were married and in January 2008 created mirror NRBDT Wills and severed the joint tenancy of their home so it was held as T in C in equal shares with the usual restriction on the title register. C was appointed as executor and trustee.

B died in February 2012.

C renounced as executor and disclaimed their appointment as trustee. There were no substitution provisions for an alternative executor or trustee in the Will.

Nothing has been done to deal with B’s estate.

A now wants to sell the property and purchase a new one. The sale and purchase are at a point where we cannot wait for the Probate Registry to issue the Grant of Letters of Administration with Will annexed (they will not commit to time scales for an urgent application).

We are happy that A can appoint a co-trustee to overreach the restriction preventing a disposition by a sole proprietor meaning that the sale can proceed. However, A wants to use the sale proceeds to purchase a new property.

Can A and the newly appointed trustee use the sale proceeds to purchase the new property provided the title to the new property clearly shows that the property is held by A plus the newly appointed trustee as to X% for A in her sole name; and Y% for the estate of B? This will allow the sale and purchase to proceed following which we can sort out the issues relating to the NRBDT.

I believe they can based on the various legislation but this has been chewed over at length and any thoughts welcome.

Bruce Clarke
Rix & Kay

2

May I play “Devil’s advocate” on this query?
I agree that A can appoint a co-trustee [of his/her choice] to effect the sale, and that they as trustees are then holding a share [being 50% or whatever] on trust for the estate of B.
But if they then choose to ignore that, and effectively distribute all to A, what are the practical consequences?
We do not know the size of the estate and so whether tax may be a consideration [although from the wording of the post I suspect not], or the other potential beneficiaries [perhaps including some as yet unborn, or charities?].
I suspect that if A appoints a family member as co-trustee, and if all other potential objects of the Discretionary Trust are also family [whether of age or not] then A and the co-trustee may be willing to accept any personal risks which Bruce would naturally and properly advise of.
If one or more charities are named as potential beneficiaries it may be necessary to contact them to explain the rationale [eg that they were always intended to be default beneficiaries only in the event that all family had failed to attain a vested interest] and request their agreement [formal or not] to the present proposal.
Depending on the precise terms of the wills, perhaps Bruce need not have to “sort out the issues relating to the NRBDT”
Kevin Mullen