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  • FIRST POST
    • clairecmitch
    • By clairecmitch 10th Mar 17, 2:55 PM
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    clairecmitch
    Selling Mums house with brother in situ
    • #1
    • 10th Mar 17, 2:55 PM
    Selling Mums house with brother in situ 10th Mar 17 at 2:55 PM
    Hi,


    Although this is yet to happen, I am getting more concerned as time goes on.


    My Mother is elderly and in poor health (heart defects) and I don't think she will be around much longer.


    My parents sold approx. 50% of their property to equity release some 10 years ago.


    My brother who is 52 years old has always lived at home (when he's not been in prison). He doesn't work, or claim benefits and lives off my Mother.


    I am the sole executor of her will and we also have an LPA in place for when she can no longer manage her finances.


    My concerns as to how things will pan out when she passes are many but mainly:


    What if my brother refuses to get out of the house for it to be sold or get obstructive when anyone views it?


    Will the equity release firm get involved and instruct a solicitor to get him out or will that be down to me or will I be unable to remove him at all?


    Advice to help put my mind at rest would be appreciated.
Page 1
    • G_M
    • By G_M 10th Mar 17, 3:18 PM
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    G_M
    • #2
    • 10th Mar 17, 3:18 PM
    • #2
    • 10th Mar 17, 3:18 PM
    As Executer you can certainly use the courts to evict him - but i will be expensive.

    The Equity Release company I imagine will get involved as they'll want the sale, and their money - have you access to the scheme documents? see what it says!

    What does your mum's will say?

    But to be honest, whilst it may seem morbid, as well as awkward, you might want to discuss his with your brother ahead of time, and see if he has thought ahead at all. Where does he expect to live in the long term?
    • silvercar
    • By silvercar 10th Mar 17, 3:18 PM
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    silvercar
    • #3
    • 10th Mar 17, 3:18 PM
    • #3
    • 10th Mar 17, 3:18 PM
    My parents sold approx. 50% of their property to equity release some 10 years ago.
    I think you mean that your parents took a loan that is secured on the property and repayable on second death.

    I would think the equity release company would take your brother to court to evict him, in the event he refused to move.

    If he can show that he is dependent on your mother, he may be able to claim a large portion of any inheritance. He may also be able to claim some help from the council in finding accommodation. If he was no longer being funded by your mother, he may be entitled to benefits at that point (depending on the size of any inheritance).

    If the equity release company do manage to evict your brother, I don't know how you would feel about supporting him. It seems some planning is needed.
    • clairecmitch
    • By clairecmitch 10th Mar 17, 3:31 PM
    • 9 Posts
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    clairecmitch
    • #4
    • 10th Mar 17, 3:31 PM
    • #4
    • 10th Mar 17, 3:31 PM
    Thanks for your answers.


    My Mums will states that her estate be split 50/50 between me and my brother.


    She has not made any provisions in her will other than that. To be honest, she doesn't have a pot to p in other than the property.


    Discussing this with my brother is not an option as I no longer wish to have communication with him due to his aggressive and frankly psychotic behaviour.


    He has always been trouble and I can see huge amounts of trouble ahead.


    I'm planning to move as soon as I can afford to as I don't want him knowing where I am once Mum has gone.


    The fact that there will come a time when I am in control of Mums finances gives me sleepless nights as she pays for everything for him and I won't be prepared to do that once she is gone.
    • Mojisola
    • By Mojisola 10th Mar 17, 3:45 PM
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    Mojisola
    • #5
    • 10th Mar 17, 3:45 PM
    • #5
    • 10th Mar 17, 3:45 PM
    My brother who is 52 years old has always lived at home (when he's not been in prison). He doesn't work, or claim benefits and lives off my Mother.
    Originally posted by clairecmitch
    My Mums will states that her estate be split 50/50 between me and my brother.
    Originally posted by clairecmitch
    It's very likely that he would be given a much larger share than 50% because he is financially dependent on your mother if he challenged the will.

    When the time comes, the best thing to do may be to walk away and let him and the equity release company fight it out.

    If you take on the role of executor, you will have a lot of problems and upset and may come away with very little.
    • clairecmitch
    • By clairecmitch 10th Mar 17, 3:53 PM
    • 9 Posts
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    clairecmitch
    • #6
    • 10th Mar 17, 3:53 PM
    • #6
    • 10th Mar 17, 3:53 PM
    Oh great! I hadn't even thought of that.


    I doubt that he would challenge it as he's not particularly bright.


    I guess he'd also get legal aid to do it!!


    I'm seriously thinking as you say of removing myself as executor and cancelling the LPA as it will cause no end of grief and I know at some point the police will be called.
    • Mojisola
    • By Mojisola 10th Mar 17, 4:03 PM
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    Mojisola
    • #7
    • 10th Mar 17, 4:03 PM
    • #7
    • 10th Mar 17, 4:03 PM
    I'm seriously thinking as you say of removing myself as executor
    Originally posted by clairecmitch
    You can't remove yourself as such - your mother would have to redo her will naming someone else but you can refuse to take on the role.

    Normally someone else from the family would then apply.
    • clairecmitch
    • By clairecmitch 10th Mar 17, 4:05 PM
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    clairecmitch
    • #8
    • 10th Mar 17, 4:05 PM
    • #8
    • 10th Mar 17, 4:05 PM
    We have no other family and all mums friends are elderly.


    I may ask her to look into making the bank of a solicitor the executor.


    I've had grief and abuse from my brother all my life and this is really worrying me. Peace of mind is more important to me than finances.


    Can I cancel the LPA?
    • GDB2222
    • By GDB2222 10th Mar 17, 4:14 PM
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    GDB2222
    • #9
    • 10th Mar 17, 4:14 PM
    • #9
    • 10th Mar 17, 4:14 PM
    It's very likely that he would be given a much larger share than 50% because he is financially dependent on your mother if he challenged the will.

    When the time comes, the best thing to do may be to walk away and let him and the equity release company fight it out.

    If you take on the role of executor, you will have a lot of problems and upset and may come away with very little.
    Originally posted by Mojisola
    Take a look here:
    https://www.wrighthassall.co.uk/knowledge/legal-articles/2013/04/01/inheritance-rights-adult-children/

    Your bro has 6 months from date of probate to make his claim. On the bare facts you have stated, he may get awarded the whole lot - unless the house is very valuable.

    You can decline to act as executor, but that does mean taking no steps in that direction at all.

    "But you can only renounce probate if you haven’t intermeddled in the deceased’s estate. So if you are unsure whether you want to take on the role, you must not interfere in the affairs of the estate until you have decided to proceed."
    http://www.lawpack.co.uk/probate/articles/article7428.asp
    No reliance should be placed on the above! Absolutely none, do you hear?
    • indsty
    • By indsty 10th Mar 17, 4:28 PM
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    indsty
    [QUOTE=Mojisola;72232269]It's very likely that he would be given a much larger share than 50% because he is financially dependent on your mother if he challenged the will.

    Out of interest - is this the case if the brother is only financially dependent because he is choosing not to work and refusing to claim benefits as the OP suggested? He does not appear to be disabled or incapable or being financially independent.
    • GDB2222
    • By GDB2222 10th Mar 17, 4:34 PM
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    GDB2222
    [QUOTE=indsty;72232503]
    It's very likely that he would be given a much larger share than 50% because he is financially dependent on your mother if he challenged the will.

    Out of interest - is this the case if the brother is only financially dependent because he is choosing not to work and refusing to claim benefits as the OP suggested? He does not appear to be disabled or incapable or being financially independent.
    Originally posted by Mojisola
    The OP said he is psychotic.
    No reliance should be placed on the above! Absolutely none, do you hear?
    • Rosieandjim
    • By Rosieandjim 10th Mar 17, 4:36 PM
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    Rosieandjim
    The above is rubbish.


    It is clear that an adult able-bodied child who has no other argument other than to say he is “badly off” is unlikely to be successful with a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975

    This seems to be the case and if correct he will jolly well have to find himself a job and accommodation
    my advice would be to seek professional help you are going to need it
    • silvercar
    • By silvercar 10th Mar 17, 4:45 PM
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    silvercar
    The fact that there will come a time when I am in control of Mums finances gives me sleepless nights as she pays for everything for him and I won't be prepared to do that once she is gone.
    While Mum is alive an LPA means that you do as she would have wished, had she been capable. Arguably that means spending on brother.

    Once she is no longer alive, you as executor would comply with the will.

    There is the intermediate stage, between death and probate, where you brother would have not yet had inheritance but have no income.

    How much equity is in the property, after the equity release company get their share including any interest etc?
    • Mojisola
    • By Mojisola 10th Mar 17, 4:52 PM
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    • 72,689 Thanks
    Mojisola
    Out of interest - is this the case if the brother is only financially dependent because he is choosing not to work and refusing to claim benefits as the OP suggested? He does not appear to be disabled or incapable or being financially independent.
    Originally posted by indsty
    The mother is choosing to financially support him.

    Whether he's capable of working or could be claiming benefits isn't relevant.

    We've just redone our wills and have an adult son living with us. He could find somewhere else to live and claim benefits to pay the rent so he doesn't have to be dependent on us for his accommodation.

    Our solicitor has made us aware that he could have a claim on a greater share of our estate if he still lives here when we die.
    • Keep pedalling
    • By Keep pedalling 10th Mar 17, 4:53 PM
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    Keep pedalling
    if you mum needs to go into residential care, the house would have to be sold much earlier, not only to pay care costs but the ER company will also be due to repaid at that point. Your brother needs to prepair for the fact he is going to have to find alternative accomodation in the very near future.
    • G_M
    • By G_M 10th Mar 17, 5:27 PM
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    G_M

    My Mother is elderly and in poor health (heart defects) and I don't think she will be around much longer.
    Originally posted by clairecmitch
    Is she likely to need residential care at some stage? What is her prognosis? If you're sayig she's likely to drop dead from a heart attack any day, that's one thimg. If she is likely to gradually deteriorate, becoming ever frailer, then other issues arise.

    Is she still of sound mind? Is she likely to remain of sound mind (or might dementia or general frailty make her mentally incapable?)

    (apologies for the harsh-sounding questions - but the legal /medical terms are relevant).

    If as you suggest, the time will come when
    a) she needs residential care and
    b) she is unable to manage her affairs herself

    then

    c) you could refuse to act under the LPA, and get the courts to appoint an Administrator - but do you really want a 3rd party deciding what happens to your mum?

    d) you could start managing mum's finances, and/or care decisions, yourself

    e) the local authority is likely to insist the house is sold to fund residential care before they will pick up the tab

    f) there may be a defense to using the property for care funding in that it is your brother's main residence. I know this applies to a spouse -not sure about children. Look at the AgeUK website- lots of useful info there

    g) yes, under a LPA you have to act in mum's best interests. But once money is needed for care funding that may well include diverting money away from your brother towards her care needs, despite her clear desire till now to support him. To what extent does she support him (beyond housing)? Does he get an allowance? Food?......?

    h) another option to fund her care (if it becomes necessary) would be to let the property out for an income stream- but brother would have to go.........

    i) on death, you could (as suggested above) decline to act as Executer. The risk is that your brother (assuming he has the understanding to realise) could then apply to administer the estate in your place. Who knows what he'd do!

    j) an alternative would be to remain as Executer, but employ a solicitor to manage the day to day work (including dealing with the equity release company and the sale of the property. The costs for this would mount rapidly - solicitors typically charge £70 - £150 per hour and a standard estate can take quite a lot of time/work to administer. Add in time for managing a dispute/eviction/legal action.......... £££££££££££££ !

    Sorry much of the above is depressing with no obvious easy solutions, but you're at least being sensible by looking ahead, and the more you get to understand of the issues, the propblems, the options, the easier it will be in the long run.
    • GDB2222
    • By GDB2222 10th Mar 17, 5:40 PM
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    GDB2222
    The above is rubbish.


    It is clear that an adult able-bodied child who has no other argument other than to say he is “badly off” is unlikely to be successful with a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975

    This seems to be the case and if correct he will jolly well have to find himself a job and accommodation
    my advice would be to seek professional help you are going to need it
    Originally posted by Rosieandjim

    The OP has stated that her brother is psychotic, so he is unlikely to be able to hold down a job.
    No reliance should be placed on the above! Absolutely none, do you hear?
    • clairecmitch
    • By clairecmitch 10th Mar 17, 6:20 PM
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    clairecmitch
    Hi everyone,
    Thanks for all your replies. When I say my brother is psychotic, it's based on his behaviour not a diagnosed condition. I'm sorry if that was misleading.
    He used to sign on for job seekers allowance but it was stopped cos he couldn't prove he was looking for work.
    • clairecmitch
    • By clairecmitch 10th Mar 17, 6:24 PM
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    clairecmitch
    Hi, there is likely to be less than £70k I would think.
    • clairecmitch
    • By clairecmitch 10th Mar 17, 6:29 PM
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    • 3 Thanks
    clairecmitch
    She is getting frailer but I know she will refuse to go one home. She's already in heart failure.

    I think I'll cancel the lpa and get my mother to appt a solicitor or her bank as executors.

    Thanks so much for your comprehensive advise.
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