H died having made a Will which appointed a bank as the executors and trustees. There are no other executors or trustees appointed. The Will contained a nil rate band discretionary trust with the residuary estate passing to the surviving spouse. The intention is to unwind the discretionary trust after three months of the date of death and before the end of two years, in favour of the surviving spouse, however, the bank renounced both as executors and trustees of the nil rate band discretionary trust
The surviving spouse as the sole beneficiary of the residuary estate can apply for letters of administration and therefore can administer the estate, however, this does not necessarily give her the right to be a trustee of the nil rate band discretionary trust and there does need to be two trustees . Currently the trust cannot be activated or wound up within teh two year period as a result.
If you have not already done so, I suggest you look at the string headed “No Appointed Trustees of a Trust” in which the same issue is currently being discussed.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
It may be that the wording of the Trust could help if the Trustees were given permission to make certain changes.
As an example, a Will from 1969 which included a discretionary Trust was recently updated by codicil, giving Trustees permission to accept an IOU from the surviving spouse, in place of the nil rate band. Therefore, the Trustees could allow the surviving spouse to ‘borrow’ the nil rate sum, to be repaid by IOU upon her death from her estate.
In that way the surviving spouse could have full access to use the nil rate sum as she wished during her lifetime, but the loan from Trustees was secured with a charge at land registry on the property.
It may be that the bank have more interest in wanting to manage the nil rate sum rather than assist the spouse, but if spouse and all remaindermen were in agreement, perhaps the bank could be persuaded to be more helpful with a DOV application?