Separate names with a comma.
Discussion in 'Legal and financial issues' started by AndyQ8, Apr 26, 2015.
So if I've read this right the funding for the care is being paid for as a deferred payment against the house, your niece's inheritance. I believe what you have to do is in her (your niece's) best interest. While your sister (the niece's mum) may want to keep the property if it's value is being eroded at anything up to £1,000 a week in deferred care home fees then is it worth keeping and empty houses can be a right pain.
Without knowing all the figures (and I don't expect you to disclose them) it's difficult to answer, all the rent (less the running cost) would go to the care home fees so no one benefits there except Social Services but I'm sure you could recoup the refurbishment cost from the rent before you started paying it to the SS (as a business expense).
I personally think the renting route is a pain but I know many here do it quite successfully, I be inclined to tell your sister to go down the rent route if she wants but let her do all the hard work (and it can be hard work). If she sees preserving her daughter's inheritance is best served by renting then OK but let her organise it.
I think I might be in a very similar position (although Im trying to locate mums will, so I cant be sure) and I will read this topic with interest.
I have been thinking about what I could do if my situation is the same as yours, but my thoughts may or may not be helpful.
I have rented out a house before when we moved and ended up as accidental landlords and it was not too bad, but we used a renting agency and things may have changed since then anyway.
Are you being charged interest on the deferred payment? If so, depending on the rate, you may want to pay it off as soon as possible.
I am wondering whether I could rent out mums home, use all her income (pension, attendance allowance and rental income) to pay off her care home bills and then asking all interested parties if they (including me) would pay off the rest of the fees to preserve the capital - I doubt she would live long enough to use up her capital down to £27,000, so I cant see any benefit in running her capital down. Her capital could the be divided according to her will.
So, you're effectively in a position to choose whether you and your brother, or your niece inherit anything? It'll cost. but I'd say you need some good legal advice. Of course, with mutual agreement, wills can be changed by the beneificiaries using a deed of variation. To me, the fairest thing to do would be agree to split whatever's left so you all get something, but I'm not sure that that can be done until after your mum's death. I know family relationships can be difficult,but, as you have the right to sell the house to pay the care home fees, it might be worth having that sort of discussion. It's a horrible position for you to be in.
I think you're mixing up your role as deputy(current) and executor(future). The latter only comes into play on your mother's death. As your mother is still alive, the house does not 'belong' to your niece as things stand today.
Your prime, indeed legal, role as deputy is to act in your mother's best interests, not that of your niece.
If you decide to sell the house, there is nothing to stop you and your brother, as sole beneficiaries, passing a fair share of your mother's remaining assets over to your niece (and/or indeed your sisters) via a deed of variation when the time comes. I did that with my mum's money - half of it went straight to my children.
I think your mother has unnecessarily made things complicated by not treating all family members equally. A solicitor once offered very sage advice re. wills ie - don't try and overcomplicate things as it can have unintended consequences. In your case, I can foresee some animosity when they discover what their mother, no doubt with the best of intentions, has done.
I agree that not treating all family members equally does complicate things, and does cause long-lasting resentment. If you want to preserve good relationships within the family after your mother's death, it might be worthwhile getting good legal advice, and then talking about possible solutions with your siblings.
Andy - you say your siblings assume other assets will be divided equally - can you imagine their reaction when they discover this is not going to happen ?
You and your siblings can only sort this out by being totally upfront about the stipulations in the will, otherwise any actions your sisters endorse at this stage are not being taken based on the full facts.
That's a recipe for an epic fall out if they think you're being duplicitous.
My OH is very upset that his mother has been treating him and his sisters differently in terms of birthday and Christmas presents (he gets nothing) for years - and they're all in their 60s! "It's the thought that counts' used to be a favourite expression of hers...and when the thought is that my mum has favoured my siblings over me, I don't care how old you are or how well off, it still hurts deep down. A small box of After Eight would make all the difference.
We are aware she also bought a small Christmas gift for my SIL's two grandchildren and our grandchild didn't even warrant a card when she was born ...and if I'm honest, I can't forgive her for that.
Just to say FIL left property to OH. By the time FIL died the property had been long sold. OH got nothing. Fils solicitor had pointed out the anomaly several times, but FIL refused to do anything.
Note that FIL was later diagnosed with dementia, but long after property sold.
In my layman opinion, paying for care comes before making sure a will can be adhered to. But I agree that you should seek expert advice to find out how best to proceed in your mother's best interest and without getting the whole family against you.
As Chemmy says, the first step is being upfront with your siblings. Otherwise anything you do will rebound on you and cause trouble.
These resentments run very deep, they often go back to childhood - when mum preferred one child over the others... and that is then reflected in a lifetime of gifts, attention... and of course, the will.
People can't forgive this - it has nothing to do with age, or being well-off and not needing the money.
If the house does need to be sold in order to pay fees, then personally I would not feel bad about ultimately making a deed of variation to share out whatever may eventually be left in the proportions that would have applied before care costs.
E.g. for the sake of simplicity, if the house had been worth say £100K and the savings had amounted to £50K, then I would make a D of V to pass on two thirds to the niece, and the other third to the others.
But as others have said, whatever the will might say about the house is irrelevant while your mother is still alive and her assets are needed to fund her care. I don't think any decision re funding should be based on, or at all affected by, what a will may say. I can see that your sister wants the house to be kept, but this just might not be possible or practicable, and I don't think she should expect you to hang on to it no matter what. She needs to understand and accept that her daughter has no claim at all on anything while your mother is still alive. (easy to say, I know...)
Families and wills can stir up toxic hornets' nests, that's for sure.
And, of course, she could live so long there will be no money or property left.....
really , a will should be sealed until the owner dies, in the meantime you do what is in your MOTHERS best interest, here and now.
Do they know that you are aware of what the will says?
Its doesn't come into play until she's gone, so I think you'd be well advised to get on and do what needs doing today, and deal with the will when se's gone. Ultimately the granddaughter wont get anything if the money is needed now.