Advice on Probate - Letters of Administration & Tennants in Common

Joey2

I contacted a firm of Will Writers who also do Probate yesterday. My Father died at Christmas & didn't leave a will. The house will I understand now become my Mothers property (house was in Dads name). I've been concerned as my Mother has Dementia & has a Carer at home partly paid for by Local Authority & partly my Mother & I worried should her condition deteriorate in the future the local authority could force the sale of the house to pay for a Care Home. The Company I contacted said they can handle the Letters of Administration (probate when no Will) and will make my Mother & I Tennants in Common with greater share in my name (95 p cent), they said this will protect the property. They also said they can draw up a Will for my Mother, I am the only child, my Fathers Brothers & Sisters are all dead but did leave children, I normally do not live with my Mother but visit several days a week. This sounds wonderful but am I being nieve. What credentials should I be looking for in a Will Writer? The web site for this company says they are chairpersons for Will Writers.

daska

thank you Joey, you'll find it easier if your questions are on their own thread

Re your dad's estate, if he died intestate then there are strict rules which are summarised HERE with a flow chart HERE (if that's easier for you)

You can apply for letters of administration and do it yourself. It's not complicated. The advantage is that you retain overall control but can then spend money on the bits where you NEED solicitors etc. If you want to do this then I would recommend the Which? Wills and Probate book - try your local library first but make sure it's the correct edition.

I'm quite concerned about the rest of your post. If your mother has dementia then is she legally capable of making a Will? Or capable of understanding the implications of gifting her assets to you? Have they explained that it's actually against the law to gift assets to someone for the purpose of evading care home fees? It's considered 'deprivation of assets' and she could be treated as if she still owned the house in it's entirety and/or you could be pursued for the fees. Not to mention that if she dies within 7 years those gifts are still liable for IHT. Who is in charge of your mother's finances, you you have a lasting power of attorney? etc etc etc

Having said that... is the house in your father's sole name and the estate worth more than 250K? If it is then my understanding is that you would automatically inherit part of it:

(from the link above) Spouse receives first £250,000.00 for dates of death after the 1 February 2009 in respect of assets solely in deceased’s name plus a life interest in half of the remaining capital, children receive half remaining capital absolutely, then on the death of the spouse/civil partner the children receive the remaining capital.

Your share could presumably be taken as a share of the house and that percentage would be protected.

Your other alternative would be to investigate setting up a family Trust. But again, it needs your mum to have the legal capacity to make those decisions or for you to have the authority to take them for her. Office of the Public Guardian

*Robin*

Joey2 wrote: »

I contacted a firm of Will Writers who also do Probate yesterday. My Father died at Christmas & didn't leave a will. The house will I understand now become my Mothers property (house was in Dads name). I've been concerned as my Mother has Dementia & has a Carer at home partly paid for by Local Authority & partly my Mother & I worried should her condition deteriorate in the future the local authority could force the sale of the house to pay for a Care Home. The Company I contacted said they can handle the Letters of Administration (probate when no Will) and will make my Mother & I Tennants in Common with greater share in my name (95 p cent), they said this will protect the property. They also said they can draw up a Will for my Mother, I am the only child, my Fathers Brothers & Sisters are all dead but did leave children, I normally do not live with my Mother but visit several days a week. This sounds wonderful but am I being nieve. What credentials should I be looking for in a Will Writer? The web site for this company says they are chairpersons for Will Writers.

My bold. If Mum has dementia, she probably does not have capacity to make a Will. Do you have a POA for her? I don't think the 95/5% split in ownership via a new Tenants in Common agreement would be legally binding if Mum doesn't have capacity to agree - in fact it doesn't make sense full-stop.

As Daska says, it is not too difficult to sort out your late father's estate yourself, though a little time-consuming. (Presuming the value of the estate is below the tax threshold).

daska

Even if it's above the tax threshold there's the helpline.

Unfortunately, given the circumstances of your father dying intestate and your mum having dementia, I think your IHT and care fee planning options are more than a little restricted. If she's already in receipt of care the council will pounce if they have even the slightest suspicion that you're trying to avoid the charges.

I strongly suspect that this firm are not up to the job. I think you need to find some good advice. Try AgeUK, they may be able to offer some practical suggestions to stop you heading down the wrong path.

troubleinparadise

A diagnosis of dementia which predates any changes to the ownership of the house would suggest to the LA that there is an attempt at "deprivation of assets" if they do a financial assessment should your mother need residential care.

Indeed, as your mother is already paying towards her care along with the LA it suggests that they have already done an assessment, and are aware of her financial situation?

Equally, as has already been said, if your mother is not judged to have "capacity" (a diagnosis of dementia does not mean a person does not have capacity automatically, that should be assessed by a solicitor or doctor depending on the situation), she would not be judged competent to be making a new will.

I would be wary of a service which seems to be advising you without knowing all the facts, or explaining them to you - you may end up spending money on something which proves not to be legally valid.

daska

Remember that all funeral expenses, debts and liabilities (e.g. necessary legal fees) should be paid out of the estate - if necessary you can pay them and claim them from the estate but you will need receipts so make sure you get/keep them. Your mum won't have to move out of what will be her house in order to pay the fees, the local authority can't force her to do that. They will however take steps to ensure they recoup the amount she owes them when the house is sold after she passes away or moves into residential care.

Fire_Fox

Please get proper legal advice from fully qualified solicitors - if you parents were joint tenants she automatically inherits the house you cannot legally take on your father's half. Your mother cannot write a legitimate will if she has dementia. Your mother cannot just give you 95% of the house this is deprivation of assets and could even be deemed theft or fraud due to her dementia. Her house may need to be sold to pay for her care, don't you want her to have the best that money can buy in her twilight years?

daska

Fire_Fox wrote: »

Please get proper legal advice from fully qualified solicitors - if you parents were joint tenants she automatically inherits the house you cannot legally take on your father's half. Your mother cannot write a legitimate will if she has dementia. Your mother cannot just give you 95% of the house this is deprivation of assets and could even be deemed theft or fraud due to her dementia. Her house may need to be sold to pay for her care, don't you want her to have the best that money can buy in her twilight years?

OP states that the house was in his dad's name, which would make the advice that his mother inherits it automatically somewhat suspect.