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    • Spendingqueen
    • By Spendingqueen 11th Sep 17, 7:42 AM
    • 71Posts
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    Spendingqueen
    Will query?
    • #1
    • 11th Sep 17, 7:42 AM
    Will query? 11th Sep 17 at 7:42 AM
    My mum was married and she has separated with her husband they are not divorced, she has paid him a sum of money through a solicitor to buy his share of the house and transfer the equity to her and my brother.

    She wanted to make a will for this however the gov website states joint tenants - if one of them dies then the other automatically gets the others share of the house - So effectively neither of them can make a will because it automatically goes to the other anyway? Is that correct?

    And also with my mum being married does that mean her husband can stake a claim on her house or will he automatically get anything if she doesn't have a will just for being married (they are waiting for 2 years so they can get a divorce)?

    Thanks
Page 1
    • Keep pedalling
    • By Keep pedalling 11th Sep 17, 8:52 AM
    • 3,938 Posts
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    Keep pedalling
    • #2
    • 11th Sep 17, 8:52 AM
    • #2
    • 11th Sep 17, 8:52 AM
    She deffinately needs a will otherwise everything she owned outright below £250k will go to her husband. If the house is her only asset then her husband won't get anything.

    What does she want to happen to her share of the house when she dies? If she wants her share to go to someone other than your brother then they need to convert the home ownership from joint tennants to tennants in common. Even if she plans to give everything to your brother, she still needs a will to cover the possibility that he could die before her.

    Your mother really should see a solicitor about creating her will and sorting the ownership.
    Last edited by Keep pedalling; 11-09-2017 at 8:54 AM.
    • TBagpuss
    • By TBagpuss 11th Sep 17, 10:17 AM
    • 6,038 Posts
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    TBagpuss
    • #3
    • 11th Sep 17, 10:17 AM
    • #3
    • 11th Sep 17, 10:17 AM
    She can, and should, make a will.

    She also needs to decide how she wants to own the house. If she and your brother own the property as joint tenants then if she dies, the house will automatically belong to your brother, and her will will only deal with her other assets.

    however, she may own the property as tenants in common, in which case she and your brother will each own a specific share, and she can leave her share to whomever she wants.

    If they own as joint tenants she can also chose to 'sever the joint tenancy' which changes how they own, from Joint tenants to Tenants in Common. It is simple to do, and if she sees a solicitor about her will they will be able to help her to do it.

    If she has no will, then until the divorce is final her husband would be the person who would inherit under intestacy rules. You and your brother might get a share if there is a large state but he gets the first (I think) £250,000 plus half the rest.

    If she has a will under which her husband is a beneficiary or executor, that remains valid and binding until the divorce is finalised. After that, the will is still valid but the gifts to him fail, the will is read as if he had died on the day the divorce is made final.

    If they are not divorcing yet then she needs to ensure that a formal deed of separation is drawn up, setting out their financial settlement and that they intend to ask the court to make a binding order reflecting its terms, when they do divorce.

    Her husband is someone who could make a claim against her estate under the Inheritance Act if she were to die - this would be true both until the divorce, and after they are divorced until a formal financial order is made. Having a will, and making sure that the solicitor who makes it has notes that they are separated and planning to divorce, and of what the financial settlement between them is, makes it less likely he would be successful if he made a claim. Having s deed of separation would also be strong evidence of their financial settlement and would make it much harder for him to claim against the estate.

    A court order for a financial settlement will typically explicitly set out that neither party shall have a right to make any Inheritance Act claims against the other.

    Finally, it would be wise for her to see a solicitor to ensue that she fully understands the financial settlement and whether it is fair - have they dealt with assets other the the house, such as pensions and savings, and did they take into account any differences in their incomes or earning capacities?
    • Spendingqueen
    • By Spendingqueen 11th Sep 17, 2:39 PM
    • 71 Posts
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    Spendingqueen
    • #4
    • 11th Sep 17, 2:39 PM
    • #4
    • 11th Sep 17, 2:39 PM
    Her house is the only thing she owns - so if she didn't make a will it will go to my brother and not her husband?

    If he tried to claim it they have proof they paid him his share of the equity when they did the transfer and he signed to say he no longer was on the mortgage / involved in the property.

    I am confused why she needs a will now.
    • Spendingqueen
    • By Spendingqueen 11th Sep 17, 2:42 PM
    • 71 Posts
    • 10 Thanks
    Spendingqueen
    • #5
    • 11th Sep 17, 2:42 PM
    • #5
    • 11th Sep 17, 2:42 PM
    She can, and should, make a will.

    She also needs to decide how she wants to own the house. If she and your brother own the property as joint tenants then if she dies, the house will automatically belong to your brother, and her will will only deal with her other assets.

    however, she may own the property as tenants in common, in which case she and your brother will each own a specific share, and she can leave her share to whomever she wants.

    If they own as joint tenants she can also chose to 'sever the joint tenancy' which changes how they own, from Joint tenants to Tenants in Common. It is simple to do, and if she sees a solicitor about her will they will be able to help her to do it.

    If she has no will, then until the divorce is final her husband would be the person who would inherit under intestacy rules. You and your brother might get a share if there is a large state but he gets the first (I think) £250,000 plus half the rest.

    If she has a will under which her husband is a beneficiary or executor, that remains valid and binding until the divorce is finalised. After that, the will is still valid but the gifts to him fail, the will is read as if he had died on the day the divorce is made final.

    If they are not divorcing yet then she needs to ensure that a formal deed of separation is drawn up, setting out their financial settlement and that they intend to ask the court to make a binding order reflecting its terms, when they do divorce.

    Her husband is someone who could make a claim against her estate under the Inheritance Act if she were to die - this would be true both until the divorce, and after they are divorced until a formal financial order is made. Having a will, and making sure that the solicitor who makes it has notes that they are separated and planning to divorce, and of what the financial settlement between them is, makes it less likely he would be successful if he made a claim. Having s deed of separation would also be strong evidence of their financial settlement and would make it much harder for him to claim against the estate.

    A court order for a financial settlement will typically explicitly set out that neither party shall have a right to make any Inheritance Act claims against the other.

    Finally, it would be wise for her to see a solicitor to ensue that she fully understands the financial settlement and whether it is fair - have they dealt with assets other the the house, such as pensions and savings, and did they take into account any differences in their incomes or earning capacities?
    Originally posted by TBagpuss
    The property is in joint tenancy with my brother
    Is my mum dies will her estranged husband get her half of the house?
    I am not sure she needs all the separation information above because they transferred the property from my mum and her husband and then did a transfer of title / equity to my mum and my brother and they remortgaged as joint tenants. She is not allowed a divorce until they have been separated for 2 years.
    • Mojisola
    • By Mojisola 11th Sep 17, 2:47 PM
    • 28,524 Posts
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    Mojisola
    • #6
    • 11th Sep 17, 2:47 PM
    • #6
    • 11th Sep 17, 2:47 PM
    Her house is the only thing she owns - so if she didn't make a will it will go to my brother and not her husband?

    I am confused why she needs a will now.
    Originally posted by Spendingqueen
    The property is in joint tenancy with my brother

    Is my mum dies will her estranged husband get her half of the house?
    Originally posted by Spendingqueen
    "Joint tenants" don't own half the property - they both own the whole property.

    When the first joint tenant dies, the survivor still owns all the house.

    If your mother were to die first, her husband could not claim part of the house because it would all belong to your brother.

    If your brother dies first, your mother would own all the house and her husband would inherit from her if she died before the divorce went through - that's one reason she needs to make a will.
    • Spendingqueen
    • By Spendingqueen 11th Sep 17, 2:48 PM
    • 71 Posts
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    Spendingqueen
    • #7
    • 11th Sep 17, 2:48 PM
    • #7
    • 11th Sep 17, 2:48 PM
    So if my brother dies and then my mum died it would all go to her husband? No one could make a claim on it even though they are estranged?
    • Mojisola
    • By Mojisola 11th Sep 17, 2:54 PM
    • 28,524 Posts
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    Mojisola
    • #8
    • 11th Sep 17, 2:54 PM
    • #8
    • 11th Sep 17, 2:54 PM
    So if my brother dies and then my mum died it would all go to her husband? No one could make a claim on it even though they are estranged?
    Originally posted by Spendingqueen
    If they are still married - even if estranged - he would inherit unless she had a will leaving her estate to someone else.
    • Primrose
    • By Primrose 11th Sep 17, 3:39 PM
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    Primrose
    • #9
    • 11th Sep 17, 3:39 PM
    • #9
    • 11th Sep 17, 3:39 PM
    Your mother needs to make a will that includes making provision for your brother dying first so that any assets she might inherit from your brother are duly allocated to the person/s of her choice. Wills become invalid upon divorce but I believe she can make a will stating what would be her wishes both before and after the divorce provided it is correctly worded. She needs a solicitor to advise on this.
    • Malthusian
    • By Malthusian 11th Sep 17, 5:02 PM
    • 3,293 Posts
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    Malthusian
    Wills become invalid upon divorce
    Originally posted by Primrose
    Not quite - they are still valid but they are treated as if the ex-spouse died on the day the decree became absolute.

    So if the OP makes a Will which does not include the ex-spouse the divorce is irrelevant.

    It's marriage that makes a Will invalid, unless it explicitly states that it was made in contemplation of marriage.
    • Spendingqueen
    • By Spendingqueen 11th Sep 17, 5:04 PM
    • 71 Posts
    • 10 Thanks
    Spendingqueen
    If they are still married - even if estranged - he would inherit unless she had a will leaving her estate to someone else.
    Originally posted by Mojisola
    But above you said the house would go to my brother if my mum died because they are joint tenants?

    She just needs a will in case my brother dies (first) and then she dies - Is that correct?
    • Mojisola
    • By Mojisola 11th Sep 17, 5:19 PM
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    Mojisola
    But above you said the house would go to my brother if my mum died because they are joint tenants?

    She just needs a will in case my brother dies (first) and then she dies - Is that correct?
    Originally posted by Spendingqueen
    That's right.

    We might think we know what the future holds but the unexpected can happen - for example, if your mother and brother were in a car accident, he died at the scene and your mother died later in hospital, the husband would inherit from your mother.
    • Keep pedalling
    • By Keep pedalling 11th Sep 17, 5:44 PM
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    Keep pedalling
    Your brother should also make a will.
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