As a POA/Executor can I give a family member their legacy before my mum's death?

retiredcopper

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May 17, 2011
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Yorkshire
I have POA for my mum who is in the late stages of Alzheimer's in a nursing home. I am also the sole executor of her will.

In her will mum has left her shares to her grandson (worth about £1000). Her grandson is currently in financial need after his marital separation and I wondered if it's possible that I can cash in the shares and give the money to him before his gran dies? I can't change them into his name because he lives in Australia.

Thanks for any advice anyone can give.
 

marionq

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Apr 24, 2013
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Scotland
You could if you wanted give him the money out of your own account and then keep that amount after she dies.
 

Beate

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May 21, 2014
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London
No, absolutely not. At the moment it is still her money and you can't dispose of it as she might still need it herself.
 

love.dad.but..

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Jan 16, 2014
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Kent
No..you have a responsibility as attorney to use and protect your mums money or assets for her benefit while she is alive. Being her executor has no relevance until she dies
 

retiredcopper

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May 17, 2011
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Yorkshire
Thank you, I thought that might be the case. If we give him the money ourselves on the understanding he forgoes the legacy from the shares, I assume I will have to get him to sign something to that effect?
 

Pete R

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Jul 26, 2014
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Staffs
@retiredcopper

How does £1000 figure with regard to your Mum's overall assets?

I am going to disagree with all the others who have posted so far. OPG guidance on "gifting" clearly states that a Will can be take into account before death especially if it is something your Mum would have done herself if she still had capacity.

Obviously selling off your Mum's home or other major asset and dishing it out would not be acceptable but if this is an affordable amount then I say go for it. Also I would cash in the shares to pay for it and then when the time comes they are no longer there to be given to the Grandchild so no problems with getting papers drawn up and doesn't affect anyone else's inheritance.

https://www.gov.uk/government/uploa...ile/681929/Giving-gifts-practice-note-PN7.pdf

:)
 

Beate

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May 21, 2014
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London
I wouldn't play around with a will like that. Technically, if you cash in the shares before her death you will have invalidated her grandson's inheritance because he can no longer inherit what isn't there. It would be the same as if she said he gets a particular painting but the painting got sold before her death. He would not be entitled to the money the painting generated, instead he would be entitled to precisely nothing.
Also, we're talking about a will here not a gift. Gifts are a minefield as they should be proportionate to previous gifting habits as well as her assets.
I think giving him the money yourself and drawing up a document saying he has to pay you back once he's inherited the shares would be permissible - everything else is fraught with problems. Shares can go up or down in value so if you put today's value on them that would not be correct either, which is why I think let him inherit them then pay you back.
 

love.dad.but..

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Jan 16, 2014
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Kent
@retiredcopper

How does £1000 figure with regard to your Mum's overall assets?

I am going to disagree with all the others who have posted so far. OPG guidance on "gifting" clearly states that a Will can be take into account before death especially if it is something your Mum would have done herself if she still had capacity.

Obviously selling off your Mum's home or other major asset and dishing it out would not be acceptable but if this is an affordable amount then I say go for it. Also I would cash in the shares to pay for it and then when the time comes they are no longer there to be given to the Grandchild so no problems with getting papers drawn up and doesn't affect anyone else's inheritance.

https://www.gov.uk/government/uploa...ile/681929/Giving-gifts-practice-note-PN7.pdf

:)
That's interesting to know...presumably ok as the Grandmother has made specific instructions in the will to bequeath the shares to the Grandson? Would gifting pre deceased still be ok if no specific provision had been made in the will for the Grandson?
 

Beate

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May 21, 2014
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London
Wills and gifting while alive have nothing to do with each other. Just because the shares are here now and have been bequeathed to the grandson doesn't mean she might not need them for care costs at some point. Plus, shares can be volatile in value, cashing them in now might mean the grandson loses potential money on them.
 

Delphie

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Dec 14, 2011
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Hi retiredcopper :)

If her assets are substantial and that £1000 isn't going to make much difference (as in, it's highly unlikely to be needed for her care) then there's nothing wrong with you gifting it now. I'm a Deputy, so under quite a bit of scrutiny by the OPG/CoP with annual reports that account for everything (everything!) and I've regularly gifted much more than that to my two sons, as it was my mum's wish to help them through their higher education. There was no precedent for sums as large as that because she became ill before they started university but the situation and the gifting has been accepted by the OPG without question, over several reports over several years.

How exactly you do it is up to you and a good guide would be to ask yourself who is likely to question, within the family, what you're planning to do. If no one, then find the simplest way and go for it. To be honest, the OPG/CoP are very, very unlikely to take any interest in what you're doing anyway. On the off chance they do, it's a simple gift.
 

Pete R

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Jul 26, 2014
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Staffs
Wills and gifting while alive have nothing to do with each other.
Well if you read the guidance from the OPG I think you will find you are wrong.;)


Just because the shares are here now and have been bequeathed to the grandson doesn't mean she might not need them for care costs at some point.
I think I made that clear in my post.;)

In the court case that helped draft some of the guidance Lord Chief Justice Lush said..........

"In the context of someone’s property and financial affairs, I can think of no written statement that is more relevant or more important than a will."

:)
 

Pete R

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Jul 26, 2014
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Staffs
I think giving him the money yourself and drawing up a document saying he has to pay you back once he's inherited the shares would be permissible....
Gifting money to yourself is even more fraught. Arranging a legal document for just £1000 just doesn't seem worth it and if the Grandson failed to pay it back to the PoA then he would still be entitled to the shares on Death.
 

retiredcopper

Registered User
May 17, 2011
187
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Yorkshire
In answer to Pete R's question & advice - sadly the money from the sale of mum's house has been eaten up by 4 years of care fees and she is now down to her savings which will reach the Social Care upper limit by later this year. She holds these & another bunch of shares (roughly the same amount in value) but only the BT shares are left in the will to her grandson. The value of both lots of shares will be taken into account by Social Services when she reaches the upper limit so, in answer to Beate's advice, they may have to be cashed in anyway before she dies. I don't assume that Social Services will care that they are left in her will to a family member.

Mum did regularly gift to her two grandchildren before she entered the care home, sometimes substantial sums of money as they married & had children, so she would do the same now if she was able. I wondered if I could give her grandson £1000 of my own money (the shares are currently worth £1200) and when I execute the will I give him any surplus above the £1000 & I keep £1000 from the estate (rather than him paying me back). If he signs an agreement in these terms would I be covered as an Executor? Otherwise I can't afford to help him.
 

canary

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Feb 25, 2014
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South coast
I don't assume that Social Services will care that they are left in her will to a family member.
No they wont. Wills only come into effect once the person has died. Until then the money/assets are still hers.
My mum left her bungalow in her will to a particular person, but I still had to sell it to pay for her care home.
 

Pete R

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Jul 26, 2014
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Staffs
With your Mum's finances as they are then it would appear you will need to cash in all the shares to continue to fund her care so there will be no inheritance anyway so any deal you make with the Grandson involving their possible value is pointless as he will not be getting anything from them to pay you back.:(
 

Beate

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May 21, 2014
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London
If she is that close to reaching the upper limit then it's even more imperative that you do not give away £1,000 of her assets as Social Services will see this as deprivation of assets, and people can quote to you about gifts whatever they want, that doesn't take away the fact that SS will see it differently and might not care what the OPG says. She needs the money for her care and the grandson has no right to the money until she dies, if the shares are still intact. If they have been sold to fund her care, he gets nothing. Right now it's her money, and hers alone.
 

Delphie

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Dec 14, 2011
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Given what you've added retiredcopper, I'd advise against gifting this money from your mum's assets.

As far as the OPG/CoP are concerned, gifts have to be proportional to the assets and income, so £1000 could be a drop in the ocean in some circumstances and a great deal of money in others, and in your case I doubt the OPG would view the amount as reasonable. Then, of course, if the LA are likely to be reaching into their coffers soon, they would take a very dim view of any such sums being given away, when there is clearly already a need for care fees.

Your only option, if you still want to help out, is to arrange something privately between yourselves, as in loan the £1000 from your own cash then have it returned from the inheritance (that last £14,000 she's currently allowed to keep might allow for that, although if the actual shares are cashed in then you'll have a problem... ). It's possible, or might be, and it's lovely of you to try and help.
 

love.dad.but..

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Jan 16, 2014
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Kent
I was attorney for dad then executor and kept my thoughts of the two roles completely apart until one role finished and the next one took over. I knew the contents of my dad's will as he gave me and my sisters a copy and it was all straightforward with precise provision included also for grandchildren and great grandchildren. However sometimes knowing what may or may not be bequeathed and to whom is not necessarily helpful as it can encourage thoughts, however well intentioned the motives and I can understand you trying to think of ways to help your son through a difficult time, of benefiting
before it is due. It is impossible to predict what will happen to the share price and value in the future when your mum dies so your suggestion would seem to be a bit of a lottery for both you and your Grandson even if your mum had plenty of other funds which she doesn't seem to have.