Wills and Potential Property problem

[merlin]

Hi Everybody,

Haven't posted for some time as things have been fairly stable for the last couple of years and the decline in my wife's condition has been slow. Chased CHC to the bitter end plus 2 appeals (both failed) so have now given up.

Cutting to the chase, we both made wills leaving our property and funds to each other but last year I made a new will where I changed the beneficiaries to other members of the family. Couldn't ask my wife to change her will as she cannot communicate (or write)at all.

However have been increasingly worried by a thought that has occurred to me. My wife although in the latter stages of dementia is in perfectly good physical health with many years left to live. In the event that I predecease her and with our property owned as tenants in common, presumably she will inherit the property. This will put her over the minimum threshold of held funds again and the government/county will take all.

Is this a realistic scenario? Any thing I can do to avoid the situation.

Merlin

 

[cragmaid]

I googled Tenants in Common and found the following. The bit in italics is my interpretation. Double-check the wording of your wills and seek legal advice if necessary. Having said this, I would add that I would rather have my spouse cared for in a manner that will keep him comfortable, whatever the cost to my families inheritance.

"
If you own your home as joint tenants then both of you own the whole of the property, so when one partner dies, the other automatically becomes the sole owner of the home. With tenants in common, you each own a share of the property, typically split half and half.

If you own your home as joint tenants, then if one partner dies, the other automatically becomes the sole owner of the home." This then means that the property would be counted as an asset, and it's value, along with any savings, would be realised and utilised to pay for long term care.
"With tenants in common one member of a couple can pass on their share of the home on death, say to their children, while the other member of the couple can continue to live there, passing on their half on death

Tenants in common can also prevent you having to sell your home if you need to go into long-term care."

 

[sue38]

In the event that I predecease her and with our property owned as tenants in common, presumably she will inherit the property. This will put her over the minimum threshold of held funds again and the government/county will take all.

If you own the property as tenants in common as you say (and you may be as well checking this with whoever prepared your wills) then your share of the property does not automatically pass to your wife as the co-owner of the property. It will instead pass under the terms of your will.

 

[merlin]

Wills and Potential Proper Problems

Hi

Thanks for the very prompt responses you have both relieved me greatly.

Interestingly I failed to find the ownership documents among my papers recently after a cursorily look. I shall now look a bit more diligently. I know I did it for precisely the reason mentioned ie. selling the property to pay for the long term care where she is now.

Thanks again for the responses

Merlin

 

[Pete R]

In the event that I predecease her and with our property owned as tenants in common, presumably she will inherit the property. This will put her over the minimum threshold of held funds again and the government/county will take all.

Is this a realistic scenario? Any thing I can do to avoid the situation.

Unfortunately Merlin I do not think there is much you can do and although what the others have said is true The New Care Act has changed how recent ammendments to wills can be challenged and how co owned property can be valued.

I assume that at the moment the house is has been disregarded as you are living in it. If you need to go into care in the future the LA will assess you as both owning half and both of you will become self funders till those assets run out. It doesn't mean the house has to be sold but more than likely will. If you die whilst in care what remains of your assets goes as per your will.....MAYBE!

If you die before going into care then the LA will assume your wife owns half the house and she will become self funding. Again it doesn't mean that the house has to be sold immediately. Your wife and beneficiary of your will can enter into a Deferred Payment Agreement where the LA pay and the debt is repaid on death by sale or any other means.

However, and this is the MAYBE, the LA can challenge your timing of the change of will and deem your wife owns all of it. A court would have to decide any disagreement.

There have been a few recent threads on fairly much the same issue and are worth a read especially the first which suggests the LA have already insisted on valuing half the share of a property......
http://forum.alzheimers.org.uk/show...ng-Tenants-in-Common-and-bully-boy-LA-tactics
http://forum.alzheimers.org.uk/showthread.php?89786-Charge-advise-for-care-home-fees
http://forum.alzheimers.org.uk/showthread.php?89753-Tennants-in-Common-with-Dad-Advice-Please

I wish you well.

 

[Kevinl]

However, and this is the MAYBE, the LA can challenge your timing of the change of will and deem your wife owns all of it. A court would have to decide any disagreement.QUOTE]

As you say a court would have to decide, but, I think it is extremely unlikely a will would be overturned on this basis. On what grounds "failing to make reasonable provision" for the partner or "deprivation of assets"?
If any LA were to take this to court (unlikely) and even less likely were to win we'd all have to consider what to do as the fundamental principal of wills would fall apart.
Anything is possible but I think it is hugely unlikely it will happen or that the LA would win the case.
K

 

[Pete R]

As you say a court would have to decide, but, I think it is extremely unlikely a will would be overturned on this basis. On what grounds "failing to make reasonable provision" for the partner or "deprivation of assets"?
If any LA were to take this to court (unlikely) and even less likely were to win we'd all have to consider what to do as the fundamental principal of wills would fall apart.
Anything is possible but I think it is hugely unlikely it will happen or that the LA would win the case.
K

Kevinl, I am only commenting on what is in the OP. The wife was already in care when the will was changed and the reason for the change appears to be avoid her becoming self funding again. This could be construed as Deprivation. The LA may well be happy with half if they feel that will be enough for the duration but if not..?????

I am in no way saying this affects all wills as you suggest.

 

[Pickles53]

The other issue to consider is what happens if you do predecease your wife and her share of assets proves to be insufficient to cover all her care needs (as you say she is in good physical health and could survive for many years).

If the point is reached where the LA accept that only half the house should be counted as her asset, and on that basis agree to fund her care home fees in part or in full, they may want her to move to a less expensive home unless someone else is willing to pay a top-up fee. If you wouldn't want that to happen, I would discuss this scenario with the beneficiaries of your will and hopefully get an agreement that they would pick up the tab.

 

[Kevinl]

The simplest might be get divorced, not a serious suggestion
But if I can't change my will after my wife is in care it might be the only way I can dictate what happens to my half of the property. What about money that's in my name, could the LA go for that too if I change my will and leave it to the children, AZ society or the local dogs' home instead of my wife?
K

 

[Chemmy]

If the original will was destroyed, how would they ever know?

 

[merlin]

Hi All

First can I say thank you to all the kind souls who have contributed to the response to my query.

I still have not found the papers regarding house ownership but I am certain that it was some time ago that I changed it, certainly well before my wife went into care.
That being the case it resolves some of the potential problems.

Ironically whilst searching through the papers, I found a copy I had made of the very same discussion on Talking Point during 10/2009 started by 'dalesman' which ran to many pages including my contribution. Obviously a problem to which there is still not a black and white answer another 6 years on!

By the way is Brucie around as I have been off the web for so long I've lost track.

Thanks again for your help

Merlin

 

[realist1234]

Merlin - your main question is - if I died before my wife, could my share of the house be used to pay towards her CH fees?

Answer - a definite NO!

Assuming your home is owned between you and your wife as tenants in common as you say, then upon your death your 50% share of the property will be inherited by the family members as stated in your will. This is YOUR asset, not your wife's, and therefore the LA has no input.

My late father did exactly the same and when the house was sold after his death, the children inherited his share with the remaining 50% of our mum's being used for her CH fees. And as our mum lives in a CH that charges a 'top-up' fee, we are using our share of the property to pay for this, which will last many years.

I would just encourage you to check asap re tenants in common through Land Registry.