‘You have a dilemma’: Will warning issued as nephew could be ‘liable’ for big sum

Inheritance tax: Financial advisor provides advice

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Upon someone’s death, an executor is the person who is responsible for administering that person’s estate. Duties include carrying out the wishes of the recently deceased based on instructions which are featured in their Will or trust documents. On top of this, the executor must ensure that assets are distributed correctly to the intended beneficiaries.

However, sometimes the executor of a Will could also be a financial beneficiary of the assets which are listed on it, leading to a potential conflict of interest.

Many executors become concerned about the legal ramifications of this issue, even when they try to use the money towards a cause which is close to the heart of their loved ones who died.

Writing to The Telegraph’s ‘Ask a Lawyer’ segment, one man named Colin asked for legal advice on what he should do with his aunt’s Will, which left a staggering £20,000 on the table.

Being the sole executor, Colin explained that his aunt has no children but had a deep love of animals.

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In her Will, his aunt left financial charitable gifts, including one to a Romanian dog rescue charity, however Colin is unable to track down this organisation.

Colin asked: “The gift was for £20,000. If it cannot be paid, can I include it instead in the ‘residue’ that goes to my aunt’s five nephews and nieces, of which I am one?”

In response to his question, Gary Rycroft, a solicitor at Joseph A Jones & Co, offered some sage advice as to the best course of action and how executors can navigate this legally sensitive situation.

My Rycroft said: “You have a dilemma which has personal financial implications for you, whichever way you go.

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“Your role as executor means that if you do not pay the legacy and distribute the £20,000 between yourself and the other beneficiaries entitled to the residue and the ‘charity’ later turns up and asks for the gift, you as executor will be personally liable.”

Mr Rycroft recommended that Colin not redistribute any of the money as he may not be able to get it back from any of the other beneficiaries.

Instead, the lawyer suggested that Colin get in contact with both the unlisted charities mentioned in the Will to see how they would want to share the money left to them in the Will.

My Ryrcroft added: “Here the value of the gift makes applying to court and asking a judge to interpret the will, and then rectify it, an uneconomic exercise.

“I suggest you take a more pragmatic approach.”

He suggested he contacts the two aforementioned organisations and explain the situation – that there is a gift in her will for the benefit of an organisation with the same purpose as them, but he can’t be sure which organisation she wanted to benefit.

“Ask whether they would both agree to split the gift and give you a receipt, and if so get them to promise to repay the gift if an organisation going under the name stated in the will that was in existence at the time the will was made, ever comes to light,” he continued.

“Say you cannot be sure which organisation she wanted to benefit. Ask whether they would both agree to split the gift and give you a receipt, and if so get them to promise to repay the gift if an organisation going under the name stated in the will that was in existence at the time the will was made, ever comes to light.”

All executors are encouraged to use a solicitor when it comes to all Will proceedings as any liability which arises is immediately passed on to them.

Katie Alsop, a Partner in law firm Wright Hassall’s Contentious Probate team, outlined the importance of Wills having clear instructions so loved ones can respect those who have died wishes.

Ms Alsop said: “Throughout your life you work hard to build up your savings and buy nice things, as well as look after precious family heirlooms, so it’s important that when you’re no longer here, these items are given to the people or causes that you care about the most.

“You’re bound to trust your loved ones to carry out your wishes, but often grief can cause rash decisions, meaning the conversation you’ve had with your family regarding what should happen with your possessions may no longer be abided by.

“With this in mind, it’s important that you follow the correct procedure when creating a Will and seek guidance from a solicitor.”

Wright Hassall has shared the key Will writing tips to ensure your assets and wishes are respected after your death.

These include: seeking expert advice from a qualified solicitor, being clear and informative within the Will itself and being in communication with your loved ones regarding the content of the Will.

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