Mum died, special needs brother, house and ex partner plus more.

Plaza

Hi all,
I'm going to give this info out as it is. There is no ill gotten gains from me but I feel I'm being led up the garden path via the solicitors.

Ok, mum died suddenly in Nov 2012 aged 64. At the time she was living in a mortgaged home with 10 yrs or so left to pay on it with the last child John, who is special needs ( learning difficulties) he's now 32.
At the time mum and Jack had separated 7 yrs ago. She married Jack some years previously. He had left the house with the house behind on the mortgage and in need of a decent refurb. The house was bought for £33k ish and currently valued at about £100k.
Mum died without a will and she left the five kids in total without our mum.
Upon her death, I, being the eldest took charge of everything. I sorted out the funeral and got in touch with the Halifax. I explained what had happened and I was told that Jack was actually the next of kin not me and his name was still on the montage. However I was told the account was going to be put on hold until I had seeked the help of a solicitor.
At first everything seemed normal. Although I was told this was a very unusual case and could take some time to sort out. I explained that we wanted John to remain in the house and both me and Jason ( who are full brothers from my mums first marriage) would look after John. I told the solicitor that mum had actually bought the house with Jack for John to live in in the event of death, so he would always have somewhere to live. Jack was ok with this decision. And genuinely wanted the best for John although he was not Johns father. So Jack wrote and met my solicitors who said yes, the house was for John and he wanted no part of it.
There was also £15k in my mums post office account at the time of her death and it was agreed that that money would be used to pay off the rest of the mortage. Jack is still unaware of this cash by the way.
The solicitor came back and told me that there was a problem, because Jack was in a IVA agreement and they might not accept Jack giving the house away because of is debts.
This is now over 2 yrs ago and the solicitor seems to me anyway dragging this on and on. Just when I thought everything was good to go I was told about the Letter of Adminstration. Yes ok looking back I might need this so yes I agreed to that. Now some months later I've now been told I need to be appointed his 'deputy'. Upon reading up on this and the costs I then thought no way. This is sounding like milking us for all they can but in the right way if that makes sense.
The other four kids have all signed a piece of paper giving up our right to the house, so John can have the house.
So why do they need me to be this deputy that can cost up to £1000 to set up and then £320 a year and all the nonsense that comes with it. I've been told I need to pay this out of my own pocket. I'm not a well person myself after suffering a career ending Injury in Dec 2008 and now myself live on benefits.
Last week I had enough and sent the solicitor a strongly worded letter stating how I feel I'm being ripped off. This is my brother for gods sake and I only want the best for him.
Ok so that's the history, now for the info.....
Could I not just go for power of attorney instead. I have it for my 90 yr old gran and know what it is about. Also I've had a thought regarding the house. Could me and Jason simply ask Jack to sign the house over to both of us. I was also suggesting that the £15k be used to pay Jacks IVA off at about £6k and the rest to pay off the mortage that have recently being restless about it going on for some long without any payment being made.
So, can Jack change the ownership of the house and how much and how long would it take. Should I seek a new solicitor to make sure Jack doesn't pocket all the cash. What can I do to make sure this is all legal, if it is.
One last thing, I was charged almost £1000 to have a conference call with the solicitor and a barrister and all we talked about was the stuff the solicitor already knew. Honestly it last almost an hour and he was asking such simply questions regarding age date of birth of all the kids etc etc. I felt I was being ripped off then as well and that was only months after mum dying. Also, for this letter of Adminstration I was told to seek another solicitor, who when met me who was also was recommended by my solicitor by the way told me, I don't know why this is complicated and told you all this but it should be pretty much straight forward, then after Christmas miraculously then sided with the other solicitor and was asking for cash to do something else on top of is first fee and I was told at the time there would be no other cost at all. It all seems to fishy.
All I want is for John to be able to live in house, get the mortage paid off and remember mum. So any advice please. Sorry it's long winded but you needed all the facts.
For the record, since mum died I've looked after Johns finances and pretty much spoilt him to be honest. I also look after my Grans cash as well with neither having any problems. I'm sincere as they come and although 500 miles away round trip and with a crippling back injury with plate and screws attached to my back I still make the trip by car every 3 or 4 weeks Max to make sure all is well.

Thanks for reading

Plaza. :money:

RAS

there are a few basics:

How much is Jack's IVA?

Who appointed this solicitor?

Power of attorney is granted by someone who has mental capacity and the law changed about 5 years ago. Does John have the mental capacity to grant POA? You need to ask his social worker or doctor.

See https://www.gov.uk/government/organisations/office-of-the-public-guardian

If not, you have to get deputyship which is more complex. Even POA cost more these days.

elsien

I also have other questions for you to consider.
Is John able to work? If not, will he have the money to be able to keep and maintain the house? Will the house be taken into account as an asset for any benefits he may be claiming?
If he doesn't have capacity to manage his own finances and other decisions (and mental capacity assessments will be needed to check this, depending on the decisions to be made) then he will need a deputy to ensure that any decisions being made are in his best interests. I'm sure you want what's best for him, but that isn't always the case so the law is there to give vulnerable adults more protection than they would otherwise have. It's to prevent your brother getting ripped off by someone less scrupulous than yourself.

Plaza

RAS wrote: »

there are a few basics:

How much is Jack's IVA?

Who appointed this solicitor?

Power of attorney is granted by someone who has mental capacity and the law changed about 5 years ago. Does John have the mental capacity to grant POA? You need to ask his social worker or doctor.


If not, you have to get deputyship which is more complex. Even POA cost more these days.

Hey,
Jacks IVA is about £6k but I'm sure a one off payment could reduce this although im not 100% Payplan do settlements after it's been passed through the courts.
Regards the solicitor, just before mum passed she had a neighbour who wanted to put a patio I think on the back of there house. But the deeds to mums house showed she also owned all the back grassed area. In total it's about the same as a 6 yard goalkeeper box area. Obvious there wasn't a problem but mum needed a solicitor for the legal work. So because mum was already using them I simply went with them.
John has a mental age of an 8 yr old, but that was assessed a long time ago and to be blunt, mum mothered to much. Way to much Infact. To the point were she did absolutely everything for him. But since mum died I've pushed him on a lot and he's handled pretty much everything so far. He can make his own breakfast, make decisions , he's clean etc etc. he even goes train spotting in Manchester Piccadilly some 10 miles away. I'm pretty sure he could answer the questions about Power of Attorney.
For the costs, I'd much rather pay the £700 for PoA than the deputy costs and invasive nature of this deputy. Like I said, I do want what's best for him, but feel the current situation is now so drawn out.
Thanks for taking the time to reply.

Plaza

Plaza

elsien wrote: »

I also have other questions for you to consider.
Is John able to work? If not, will he have the money to be able to keep and maintain the house? Will the house be taken into account as an asset for any benefits he may be claiming?
If he doesn't have capacity to manage his own finances and other decisions (and mental capacity assessments will be needed to check this, depending on the decisions to be made) then he will need a deputy to ensure that any decisions being made are in his best interests. I'm sure you want what's best for him, but that isn't always the case so the law is there to give vulnerable adults more protection than they would otherwise have. It's to prevent your brother getting ripped off by someone less scrupulous than yourself.

No John is not able to work, or likely to either because of his disability.
But you do raise a good question regards benefits and the house. In answer to that, and not even taking into account the £15k in mums post office acc he will be ok. The moratage is £200 a month and John gets DLA or PIP as it is now and ESA support group allowance. He picks up around £130 a week. He wants for nothing. He doesn't drink, smoke or gamble. The weekly shopping bill is just £20 which Jason does for him. ( if I was there more than I am it would be a lot more on shopping...) so he's pretty comfortable. If it ever came to it, both me or Jason would make put our hands in our pockets to help out anyways

So reading your reply, are you saying I'm unlikely to get PoA so I'd have to go down the deputy route? Even though he's my brother and all siblings have forfeited our share of the house so it's is?
I agree yes, there are people out there who have other agendas but thinking back is it easier to have Jack sign the house over to me Jason and John so nothing could happen to John?

I mean it seems now it makes much more sense for Jack to Simply say yes there you go the house is in whoevers names now. It stops the deputy thing, John gets to stay in the house. None of us could sell because its not anyone's house standout alone.

It's getting late so I'll end for now. Thanks to you for taking the time to reply, it's very much appreciated.

Plaza

elsien

No one can say if your brother has capacity to sign a POA without a proper assessment. Your relationship is irrelevant in this context - it's his choice who he'd want to give POA to, not yours. But as far as the Mental Capacity Act goes, capacity is decision specific - saying he had a mental age of 8 is meaningless as far as the law goes. He may have capacity to manage some financial decisions but not others.
So to do a POA, he would need to show that he can understand what is being asked of him, retain the information for as long as he needs to make the decision, weigh up all the pros and cons and the consequences of making different choices. And be able to communicate his decision. If he can't do this, then he won't be able to do a power of attorney - its not just about being able to answer questions, but about showing he understands what he is doing, why, and the long term implications of this for him.

As far as your other questions, I have no idea on the best way to go. All I'm saying is that there may be different implications for everyone depending on the route you take re tax, benefits, deprivation of assets etc. Or there might not be. I just think you need to make sure you've checked it all out before deciding on a particular route.

seawaves

I know someone who has recently completed the deputyship process. She got an exemption of fees as her daughter (the person with Learning difficulties) was on benefits. I'm not sure of the details, but there is information here https://www.gov.uk/become-deputy/fees

BigAunty

Sorry to hear about your news and all the hassle.

Our family has gone through 3 solicitors and a 2 year process to sort out a small estate. The next of kin actually shared out the small sum of capital to other relatives as though there was no will in place, they honoured the verbal request of the grandfather that some of his money went to his grand-children. A verbal promise isn't worth the paper its written on, the reality is that they had no legal obligation to fulfill his request, none of the grandchildren were aware about his wishes, and this type of thing is virtually impossible to enforce through the courts without evidence, but all was sorted to everyone's satisfaction.

"Mum died without a will ....She married Jack...The other four kids have all signed a piece of paper giving up our right to the house, so John can have the house....I was told that Jack was actually the next of kin not me and his name was still on the [mortgage]...There was also £15k in my mums post office account at the time of her death and it was agreed that that money would be used to pay off the rest of the mortage. Jack is still unaware of this cash by the way".

I have no legal expertise so I hope I don't muddle things further. Was there a formal legal separation between them or had they simply stopped living together? They weren't divorced?

My amateur observation is that as your mother died intestate, Jack inherits all of the estate. There is nothing for the 4 siblings to give up in favour of their brother.

There is an intestacy checker here

https://www.gov.uk/inherits-someone-dies-without-will


For clarity's sake, what is it that you think you are giving up? Do you think that the siblings are legally entitled to any of the estate, that there is a legal obligation for half to go to the siblings, half to go to the husband, for example? Has a solicitor told you this is the case or have they explicitly said (or not) that Jack inherits everything directly, despite the separation?

As part of sorting out the estate, I presume Jack will be notified about the savings that is currently being hidden from him. I assume that all the capital, both property and savings, (after legal fees have been paid) will have to go directly to Jack who then can do what he wishes with it so long as it complies with the law. Note, I'm assuming the last point.

Has a solicitor actually said the property can be transferred directly to your brother without ownership going first to Jack? He's on the mortgage, he can't just 'come off' the mortgage if there is an outstanding sum on it and you and your brother can't just have the property transferred to you in a simple manner if there is a mortgage on it. What is owed on the mortgage and will the savings (after legal fees have been deducted) be sufficient to pay it off in full?

You may assume that your brother John, can afford to service a mortgage of £200 a month when his disability income is £560 a month but a mortgage provider may very well disagree and not grant the mortgage in his name. Mortgages for those on benefits are very hard to come by and - pop by the Disability and Dosh forum for more info on his options. Or do you expect Jack to continue owning it and for John to pay rent to him, for example? Is your brother Jason in the position to get a mortgage for it?

From your post, its note really clear who will be on the mortgage or if this can be paid off completely? How much is the mortgage in arrears? See the Shelter website to understand how the repossession process works and to ensure that the house doesn't get repossessed before the estate is sorted out. Who is receiving and dealing with the mortgage arrears? Jack is the owner and mortgagee. Have you checked if there is an obligation for him to pay the mortgage - his non occupancy is irrelevant. Speak to Shelter to understand the position - presumably Jack is getting letters about the arrears - what is he doing about it?

However, a solicitor can tell you if there is any legitimate way to achieve your wish for John to pay off his IVA with his inheritance and transfer the property to Jack, perhaps some through some kind of trust? I don't know but you definately need legal advice on how the estate will be processed and your options.


"One last thing, I was charged almost £1000 to have a conference call with the solicitor and a barrister and all we talked about was the stuff the solicitor already knew. Honestly it last almost an hour"

What does the invoice say regarding the services and time spent on this? Are you sure the 1k fee isn't for their entire work on the case, not just a quick single call - did they receive any paperwork from any other parties or perform any other kind of research or preparation? Someone else will be able to tell you how to raise a formal complaint with the appropriate Legal body.

You can double check the position on the impact of the IVA in the decision to transfer the property to John or yourself or Jason by asking on the Debt Free wanabee forum. Keep it really brief, simply outline the facts of Jack inheriting a property that he wishes to gift and what issues might result from a debtor wanting to do this and the options available.