My Dad's will put 50% of estate in trust for kids if my Mum went into care....

[Cathy_S]

Hi, Wondering if anyone else is in a similar situation to us.... I am not sure whether my Dad's will can be legal, as it stated that if my Mum went into care (she was already starting to suffer from dementia when he became terminally ill), then the house would be sold and half of the money would pay for her care and half be put into trust for us, their kids. She has now been in care for a couple of years and "her half" of the money is now becoming low (around £20,000) so now we could ask the state to pay towards her care. But if the money in trust is actually hers, then we are not at the point where the state starts contributing.

I realise we may need to ask a financial advisor/ solicitor but I thought if anyone knows this situation well, you might have some advice for us. I am really worried about the point when the state pays towards it and Mum has no money remaining and we have to start paying towards it. I have a baby and once I start working again, half of my wages will go on nursery fees. Others in my family also would find it difficult to pay. It is a very worrying thought.

Thanks for any advice on this
Cathy

[nitram]

Did your Mum and Dad own the house as tenants in common?

If they did your Dad could have bequeathed his half share in the property to his children, the other half would remain your Mum's property.

As you say you need to take legal advice.

[turbo]

Hello Cathy, I think you need to see a solicitor. We have a similar situation in that after my FIL died in January 2010 the family solicitor suggested a deed of variation putting 50% of the house into the names of my husband and his two brothers. MIL had been in hospital/care home before FIL died. MIL's house has just been sold and 50% put in trust with MIL getting the interest from the trust.
I wonder if the trust you have could be wound up to pay your mother's care fees if you want her to stay where she is and local authority won't pay. I do think you need professional advice on this probably from the solicitor who set up the trust.


turbo

[ITBookworm]

Hi Cathy and welcome to Talking Point.

I'm afraid I can't answer your question about the Trust - someone is sure to come along who will.

I can confirm that there are no circumstances AT ALL where the state can force you or anyone else in the family to pay towards your Mum's care. Only her money (or possibly the trust money depending on the answer for that) can be used. Even then there is a limit below which her money is left alone - around £14000 I believe. I think the state start paying part of the cost when her savings drop to around the £23000 mark so if they are already below that you need to check things out reasonably quickly.

The proviso about that is that obviously the state/local authority are not going to pay for an ultra expensive home if they are able to find a local home that can provide the same level of care at a lower cost. The critical bit is that the care must be at the level your Mum needs given her current condition. For example if she needs nursing care they can't say they will only pay for residential. They also can't move her to the other end of the country such that her family can't visit even if it is cheaper. Even if they can find a cheaper home (probably depending how much cheaper) there is also an argument that moving Mum could affect her condition so they might not move her even then.

I hope that give you some reassurance and you are able to get this sorted without any problems.

[hollycat]

Hi cathy

It is becoming more common for people to:

1. Change ownership of their JOINT property to TENNANTS IN COMMON.
2. Then both parties write MIRROR wills.
3. Various TRUSTS are then setup (there are quite a few different trusts).

What does all this mean in lay person terminology ?

Mr and Mrs are married with one daughter. Whilst in GOOD HEALTH, they change house from JOINT to TENNANTS IN COMMON. They both write the same will which roughly says, upon my death I leave half my house to my daughter in TRUST but allow my partner to live in the house for the rest of their lives.


What "appears" to be slightly different in your case is there seems to be a CONDITION ie if partner goes into a CH, then the following happens.

I would get STRAIGHT DOWN to the solicitor to check the exact legal status of YOUR circumstances. It is quite a specialised area in law.

[Saffie]

Whilst in GOOD HEALTH, they change house from JOINT to TENNANTS IN COMMON

Just a comment regarding the 'GOOD HEALTH' part. Both parties don't have to be in good health.Thanks to the advice from the Jennifer, I was able to change from 'Joint owners' to 'Tenants in Common' last year whilst my husband was in hospital awaiting tranfer to a nursing home. It can be done unilaterally. I did it via a solicitor because i wanted it watertight and my husband lacked mental capacity but it can be done cheaply on the internet. I also altered my Will, overlooking my husband and leaving my half of the house to my daughters.

Of course, this will not alter matters if my husband dies first but it will mean that if I should die before him, only half the house can be taken into consideration.

[hollycat]

Just a comment regarding the 'GOOD HEALTH' part. Both parties don't have to be in good health.Thanks to the advice from the Jennifer, I was able to change from 'Joint owners' to 'Tenants in Common' last year whilst my husband was in hospital awaiting tranfer to a nursing home. It can be done unilaterally. I did it via a solicitor because i wanted it watertight and my husband lacked mental capacity but it can be done cheaply on the internet. I also altered my Will, overlooking my husband and leaving my half of the house to my daughters.

Of course, this will not alter matters if my husband dies first but it will mean that if I should die before him, only half the house can be taken into consideration.

Thanks saffie. I didn't really make it too clear about the health bit, so just to clarify.

My OH has advised his parents to consider tennants in common whilst they are both in good health as IF one party is not in good health (eg dementia) and they both manage to rewrite wills and change to tennants in common, it "could" be argued later that the change took place to avoid CH fees i.e. deprivation of assets.

i.e. any legal changes made to anyones estate, monies etc AFTER A DIAGNOSIS "could" in my opinion, be subject to considerarion for deprivation of asset.

Hope this makes sense ?

[jenniferpa]

My feeling is that you need to contact the LA now in order to start the ball rolling. What your father did (leaving his share of the home to your children) was perfectly acceptable in my opinion but I'm not a legal expert. I assume he drew up his will with legal advice? As your mother's assets are now below the upper £23250 threshold, you might have been wise to have approached them before but you can do it now.

[nitram]

"...any legal changes made to anyones estate, monies etc AFTER A DIAGNOSIS "could" in my opinion, be subject to considerarion for deprivation of asset..."

A joint owner can unilaterally sever the tenancy even if the co-owner lacks capacity.
Deprivation of assets does not arise as before the person owned a half share of the property but now owns half of the property outright. Nothing has changed to the value of assets of the other (incapacitated) owner.

[Saffie]

.

e. any legal changes made to anyones estate, monies etc AFTER A DIAGNOSIS "could" in my opinion, be subject to considerarion for deprivation of asset.

Thanks Nitram. I was going to add that it doesn't affect my husband's asssests, his half of the house is still his - it's my half that I've amended. The solicitor checked everything out and was happy about it as he wasn't too sure to start with - not about the LA situation but because it could be deemed an act of aggression e.g. during a divorce or marital problems but obviously not in this case.

[hollycat]

Thanks for your replies and my sincere apologies if my remarks have caused any confusion.

[Cathy_S]

Thanks, this clarifies for me that we now need to talk to a solicitor and the Local Authority