Is deed of variation the only option?

catfish50

calleyw wrote: »

I have a feeling that the DWP will see it as deprivation.

I have the same feeling, because let's face it, it is deprivation of income. There's no earthly reason why the mother can't give away as much of the money as she wants to -- except that the family wants the mother to be eligible for benefits.

Thrugelmir

catfish50 wrote: »

Indeed. Do courts usually accept the word of would-be legatees that the deceased really meant to leave the money to them?

Often wills when published contain the "unexpected". So hearsay alone would not suffice as evidence.

calleyw

getmore4less wrote: »

Is future IHT really a problem?

Will her estate be over £325k is why is she on benifits?

Prehaps the solictor was talking in general terms as he did not know what the mothers estate was worth.

Unless she owns a house. That is not classed as an asset for benefit purposes.

Yours

Calley

Alisonlll

I'd like to clarify mum isn't sitting on a £325k estate and claiming benefit mum or in line to inherit that much money

We spoke to a solicitor Friday to get the probate ball rolling my brother only died last month we thought it simpler than me struggling with the forms to get a solicitor involved I know it's not the cheapest option but the stress it's saving us is worth it

Yes the solicitor was telling us as a general point about inheritance tax, for instance if mum bought a house with the money and it goes up in value that would be added to the estate for inheritance tax purposes gifts and house price rises can all effect the total value of a persons estate

I'd like to say to those who see the rule on benefits so black and white, mum worked and paid tax all her working life she raised three children as a single parent taking three jobs cleaning rather than scrounging from the state and we missed out on a lot of quality time and stuff that most would take for granted growing up because mum was working and paying her own way, mum now lives in a one bedroom council bungalow and gets a small amount of pension credit which entitles her to rent and council tax rebate. she has paid her way she is not a benefit scrounger looking for a way to beat the system but if circumstances change in the future she wants to know that there is contingency plan(that she could turn to the state for help)

Had my brother done his Will he could of quite legally protected mum from loosing all the support of the state (by leaving her just under £16k savings which would of made her life comfortable). she has paid into the system all her life and as tax payers, me and my other brother continue to pay, my late brother will never reap the rewards of the money he paid into the system his state pension contributions will just go to the government pot..... I don't see any one offering that to my mum!

Mojisola

Alisonlll wrote: »

I'd like to say to those who see the rule on benefits so black and white,

Unfortunately, the rules on benefits are black and white and people are explaining the rules.

Whether the rules are just or fair in individual cases is a completely different matter.

catfish50

Alisonlll wrote: »

I'd like to say to those who see the rule on benefits so black and white...

I don't see it as black and white, and heaven knows I don't like the present arrangements for meantesting the provision of elderly care anymore than anyone does. But it seems obvious that the reason you're considering going to court to seek a deed of variation, is because you and your family want to lower your mum's income to the point where she is eligible for state assistance. You just said so. Therefore why would a court grant you a deed of variation, since what you want to do is illegal?

Had my brother done his Will he could of quite legally protected mum from loosing all the support of the state (by leaving her just under £16k savings which would of made her life comfortable).

Yes, and as a by-product you and your siblings would also have benefitted. But he didn't. I think you need to try to distinguish between what you strongly feel OUGHT to happen, and what's LIKELY to happen, if you take this to court. Otherwise you may end up extremely disappointed.

Many elderly people have worked hard and never claimed benefits. If they've accumulated anything, such as a home or savings, their adult children are often extremely anxious to get the benefit of that, rather than see it go to the state in payment for care. You only have to read the threads on this forum. The desire is understandable, but the only way to achieve it (as far as I've heard about) is for the parent to gift the money and survive for seven years.

... she has paid into the system all her life and as tax payers, me and my other brother continue to pay, my late brother will never reap the rewards of the money he paid into the system his state pension contributions will just go to the government pot..... I don't see any one offering that to my mum!

Of course not. Why would a parent be entitled to claim on a son's pension contributions? And in this case, why would she need to, since she has inherited his money?

Hawkeye4aneye

Is there a father involved?

Your brother dying would mean under Intestacy that both parents inherit his estate even if you don't know where he is he still has a claim.

Is there enough of the estate to buy a property? If so then why not do that and mother can then make a will leaving the estate to the people that "would have" inherited as you suggest.
A Deed of Variation would enable this earlier but as others have mentioned she would be seen as depriving herself of assets.

catfish50

Hawkeye4aneye wrote: »

Is there enough of the estate to buy a property? If so then why not do that and mother can then make a will leaving the estate to the people that "would have" inherited as you suggest.
A Deed of Variation would enable this earlier but as others have mentioned she would be seen as depriving herself of assets.

The property would still be subject to being sold to recover care costs, should the mother require care. Giving the money direct would be a better strategy, since after seven years it wouldn't be seen as deprivation.

Biggles

Hawkeye4aneye wrote: »

Your brother dying would mean under Intestacy that both parents inherit his estate even if you don't know where he is he still has a claim.

Good point, not mentioned so far. But the father, whoever or wherever he is, is entitled to half the estate under intestacy laws.

catfish50 wrote: »

Giving the money direct would be a better strategy, since after seven years it wouldn't be seen as deprivation.

There is no particular time limit on deprivation of assets; seven years is the limit for inheritance tax.

calleyw

Alisonlll wrote: »

I'd like to say to those who see the rule on benefits so black and white, mum worked and paid tax all her working life she raised three children as a single parent taking three jobs cleaning rather than scrounging from the state and we missed out on a lot of quality time and stuff that most would take for granted growing up because mum was working and paying her own way,

It is black and white but hey if you want to commit fraud and get your mother a criminal record please do go ahead with distrubtion according to your brothers plan.

Why is it that people trot out this line time after time. I have paid in for X amount of years. So I deserve to take back out again.

You Tax and NI does not go into pot just for you to use. To be blunt what you mother has paid in over the years would not even begin to cover the use of services she has had over the years such as schooling, the birth of her children, the pension and benefits she is now pulling out of the system.

Alisonlll wrote: »

Had my brother done his Will he could of quite legally protected mum from loosing all the support of the state (by leaving her just under £16k savings which would of made her life comfortable). .......my late brother will never reap the rewards of the money he paid into the system his state pension contributions will just go to the government pot..... I don't see any one offering that to my mum!

The only reason you want a deed of variation and you are admitting it on a public forum, is so that you mother can still claim benefits. If that is not case for deprivation I don't know what is.

Life is full of what if's. What if the night my husband was in acute pain rather then taking him to local out of hours service, I took him to A & E would he still had a stroke causing him to be become disabled at the age of 44. Who knows but something I live with everyday of my life.

There are plently of people who pay NI but never get to take there state pension, such is life. I doubt there relatives get so het up about it.

Why do you think that you mother should get your brothers NI contributions back.

You need to get over what is and is not fair according to you. The whole thing is black and white and it rests on the fact that your brother did not write a will for what ever reason. I do understand that he become ill and died by the sounds of it very quickly.

But when he was well why did not he write a will? As I have been told by many hindsight is a wonderful thing.

Rather then spending time trying to get around this. You mother needs to take it as the gift she has been given and spend it to make her life easier.

I have already told you to go and get proper advice rather than from a internet forum.

Yours

Calley