what to put into a will?

[Double trouble]

Hi, i've had lots of help re. showering my Mum but now have a heavier question re. wills!!! I've booked an appointment to go with my parents to re-do their will. They recently moved into a bungalow and dad thinks all they need to do is change the address. Unfortunately my Mum's vascular dementia is significantly deteriorating and i wonder if we need to put in family members as trustees for mum's affairs if Dad were to die first. We have a lasting power of attorney for both my parents, both unactivated as yet. My mum can barely sign her name and would not be able to understand or retain information or make important decisions or handle bills or money. Has any one got any suggestions re. the sort of things we should be thinking about for the will? or if there is a good guide/ source of information re. this??
thanks for any ideas

 

[Nebiroth]

From what you say, I gather your concern is that your Dad might pass away first and that your Mum would stand to inherit either the majority or all of his estate which she wouldn't be able to manage (I assume that at the moment, the majority of bills etc are managed and paid by Dad as is quite common)

As you have LPA for your mum all you would need to do is to register it, and then you could manage everything for her. In effect her finances become "yours"; this includes anything she might inherit. There would be no need to engage in complex planning if this is all you are worried about.

As a registred attorney you would have virtually complete control
over Mum's finances, so you could operate bank accounts, direct debits, sign cheques etc. So if she inherited from Dad, all of that would simply become hers, which you would then be able to manage as attorney.


As far as I'm aware, if the LPA was registered you could even act in your Mum's name as executor of your Dad's will, if she is currently named as such.

 

[jimbo 111]

Nebiroth
Your post is an interesting summarisation of Double troubles
question There is a possibilty that it is not wholly accurate
but nevertheless it highlghts the advantages of having a LPA
and the ways it can be used in what is possibly not a rare
circumstance
This thread and your response reminds me once again of a question I have raised more than once,
In view of the large number of threads on the subject of
LPA's and associated matters such as this
Why do we not have a special section for LPA's / Wills
It would certainly get more use than some of the other sub forums in use
Thankyou for an interesting post , and I hope you will not have too much trouble getting your parents wills sorted

jimbo 111

 

[Sandy]

Hi Double Trouble,

I would say that what you need to do as a family is to get all of your concerns and issues out in the open and to discuss them with your dad.

It is the solicitor's job to work out specific legal strategies to deal with those concerns as best as possible.

The one issue that I have seen in the case of spouses (especially where the spouse without dementia is ill and likely to pre-decease the spouse with dementia) is not to leave their half of the house to their spouse, but to other family members.

This would prevent the entire value of the house being counted as available for self-funding of care should the spouse with dementia need to enter a care home.

It is one issue that might be worth discussing with the solicitor. It's the whole planning for the cost of care vs. preserving assets legally discussion really.

How productive that is may depend on how much your father has thought through the various scenarios that can arise, sometimes completely unexpectedly.

Take care,

 

[Nebiroth]

An excellent point. In order to accomplish this it would be necessary for ownership of the house to be a tenancy in common rather than a joint tenancy.

Property ownership for a couple is very often a joint tenancy. This means that in essence both partners own the whole of the property; it grants them certain rights, for example, both must agree to a sale but most importantly, if one dies then ownership of the property is automatically conferred to the survivor. This happens no matter what any Will says, it is automatic. It confers protection to a surviving spouse by ensuring they cannot be rendered homeless but it can be problematic if there is a desire to leave part of the property to another beneficiary.

Under a tenanacy in common, each part-owner owns their share independently, and may do with it as they wish. They may sell it or leave their share to whomever they wish in the Will.

The most common useage of this is in strategies to reduce liability to Inheritance Tax.

However, it can also help protect property against forcible sale to pay for care fees. For example, if your dad were to leave his share to you, it is removed from your mum's assets. Further, it is very hard to sell part of a house and at the very least would reduce the market value of your mum's share when assessed as an asset.

There are drawbacks to tenancies in common, so it's impportant to get legal advice on it.

The property would be exempted as an asset if, say, your mum had to go into care but your dad remained living in it. This is an automatic protection for spouses/civil partners of any age, also any other family member but only if they are aged 60 or over. The problem would come if your dad also had to go into care, or passed away, at that point the property would no longer be protected

 

[sue38]

Of course only your solicitor will be able to give your mum and dad the advice relevant to their situation, but you might want to think about the following before the appointment:

1. Have you told the solicitor that your mum has dementia? S/he may want to see her alone to see if she has the capacity to make a will, and to consider whether a doctor should be asked to give a medical opinion.

2. You should consider who should be executors and trustees if the unexpected occurs. You have already considered the situation that your dad might predecease your mum, and so yes you need to think about replacement executors.

3. Do your mum and dad own their bungalow? You might want to think about your mum and dad leaving their share of the house to someone other than each other. If for example your dad predeceases your mum is it likely she would need full time care? If your dad has left his share to your mum then the house would have to be sold and the entire proceeds used to fund your mum's care.

4. What if you were to predecease your parents? I know it's unlikely but it could happen that you and your parents were in the same accident. Would your parents want their grandchildren to inherit? If so at what age?

I'm sorry these are not easy questions to consider, but in order to achieve peace of mind it's important to consider the 'what ifs'.

 

[Double trouble]

thank u all so much.

Am off to the soliciters tomorrow. have been chatting and leaving messages with family members re. various questions to take, following all your useful input. will keep u posted. thanks again for yr detailed replies

 

[scarletpauline]

My husband was deemed by the solicitor and subsequently our doctor, to not be competent to make a will, we were planning to make it tenants in common so that we each owned half, but although I could protect my half and put it in trust for our children, he couldn't.