step dad died will invalid

KentishLady

My step dad died at the end of November.

His wife (my mum) purchased the family home with step dad from my great grandmother (her grandmother) at a discount when she split from my dad and got together with my step dad 37 years ago. She received legal advice at the time which advised they should set ownership up as tenants in common to protect her interests. It was registered as 50/50 so didn't reflect the gift element in her favour of the discounted purchase price. The intention was always that the house would remain in our family.

Step dad made a will leaving his share of the house to her. This was before they married and I don't think the will mentions intent to marry but I haven't read it. His children have told her the will is invalid and they will inherit a share of the house under intestacy rules. They have no intention of voluntarily giving up their inheritance and are asking her questions like have you thought about how you will pay the inheritance tax? Where are you thinking of moving to? When are you going to move? Of course you'll have to sell the house any idea when?

So can someone check my understanding of the situation is correct and give me some advice about how to safeguard my mum's interests. The house is worth let's say £950k (will be this plus or minus £200k) and there is about £17k in stepdads savings account.

Mum owns half the house in her own right so his estate is worth £492k. Mum will inherit the first £250k, plus half the remainder - £121k. Leaving £121k less any debts to the estate to be distributed between the 5 adult children.

She has an appointment to see a solicitor tomorrow and I have also suggested she see a financial advisor about her own financial planning.

My questions:

• Will the children have to be added to the title register as owners?
• Will this have to be registered as the monetary value of their inheritance and frozen at that value or will it have to be registered as a % ownership so that they benefit from increase in value but lose if it decreases in value.
• if one of the children dies before probate is finalised what happens then?
• if one of the children dies after probate what happens then?
• can they legally force her to sell their home or can they be made to wait until she dies or chooses to sell
• I think his estate will be free of inheritance tax is this correct?
• she is going to see a solicitor for legal advice tomorrow can the costs be claimed from the estate
• is there any wording in the will I need to check for which might make it valid
• is there anything we need to ask the solicitor tomorrow

The last two years (and longer) have been pretty awful as step dad had dementia and most of his children were less than supportive. Now she will have to deal with them for a lot longer than we had hoped and I fear the unpleasantness will continue until they get their money or mum dies whichever comes first.

Thanks in advance. Sorry so long. Please tell me if there is anything I should change.

Crabapple

Your mother really needs the solicitor to answer all these questions but the starting point needs to be seeing this will and whether it is actually invalid. His family may say that but are they mistaken or even malicious in doing so?

KentishLady

Crabapple wrote: »

Your mother really needs the solicitor to answer all these questions but the starting point needs to be seeing this will and whether it is actually invalid. His family may say that but are they mistaken or even malicious in doing so?

They are probably both correct and malicious unfortunately. Luckily she still has the original will they haven't managed to get their hands on it.

Crabapple

As surviving spouse she is first in line to administer the estate so she can certainly get help doing so paid for from the estate.

This forum often suggests diy probate but this may well be a case where instructing solicitors would be wise due to the potential complexity and to give her a buffer from the children.

PasturesNew

Too long, bits I saw:

KentishLady wrote: »

My step dad ....(my mum) purchased the family home with step dad ... 37 years ago. .... set ownership up as tenants in common

Step dad made a will .... before they married.... the will is invalid .... intestacy rules.

.... house is worth let's say £950k .... there is about £17k in stepdads savings .... his estate is worth £492k.

Mum will inherit the first £250k, plus half the remainder - £121k. Leaving £121k less any debts to the estate to be distributed between the 5 adult children.

Once married, the old will became invalid. True.
Intestacy rules. True.

The debts should really be settled before the maths is done. e.g. if we take a situation where there's £242k, the debts need to be deducted at this point, not solely from the children's portion (of £121k). e.g. say there were £121k of debts, that'd mean the kids would get nothing; it should be that the debts would be settled, then mum'd get £60k and the kids would share £60k.

In short, under intestacy, there's about £24k each to each of five children - if any die their estate still gets that value/money.

It looks like they would push to sell the house, which might be their "right". It can be saved by somebody/you raising a mortgage to pay them off.

But, this is a complex one really so proper legal advice needs to be sought, without emotions. Just black/white figures and facts presented and options listened to/written down so she/you understand the best way forward.

Yorkshireman99

Going to see a solicitor is the right move. Assuming the will is invalidated then the intestacy rules will apply. Unless there are funds to pay off the children then it will mean the house being sold. Under the circumstances it may well be best to pay a solicitor to apply for letters of administration and deal with th3 estate. That way your mother will not have to deal with estranged children. A financial advisor is essential as well.

Malthusian

KentishLady wrote: »

She received legal advice at the time which advised they should set ownership up as tenants in common to protect her interests. It was registered as 50/50 so didn't reflect the gift element in her favour of the discounted purchase price. The intention was always that the house would remain in our family.

Step dad made a will leaving his share of the house to her. This was before they married and I don't think the will mentions intent to marry but I haven't read it.

Whether the Will was made with marriage in mind is crucial, so you should read it before jumping to any conclusions.

I think his estate will be free of inheritance tax is this correct?

[STRIKE]No (assuming no debts). The estate is £492,000 and his nil rate band is £325,000. You may be thinking of the new residential nil rate band - this only comes into effect for deaths after 6 April 2017.[/STRIKE] (bzzt - wrong, as pointed out below. apologies for scrambled brains.)

can they legally force her to sell their home or can they be made to wait until she dies or chooses to sell

If they want to sell and she doesn't then they can apply to a court to step in and make a decision for them. I can't comment on what the likely outcome would be. Have they considered the mother paying the children rent in respect of their share of the property? (Although if there is an Inheritance Tax bill and the only way to pay it is to sell the house, that may be moot.)

Keep_pedalling

Malthusian wrote: »

Whether the Will was made with marriage in mind is crucial, so you should read it before jumping to any conclusions.



No (assuming no debts). The estate is £492,000 and his nil rate band is £325,000. You may be thinking of the new residential nil rate band - this only comes into effect for deaths after 6 April 2017.


If they want to sell and she doesn't then they can apply to a court to step in and make a decision for them. I can't comment on what the likely outcome would be. Have they considered the mother paying the children rent in respect of their share of the property? (Although if there is an Inheritance Tax bill and the only way to pay it is to sell the house, that may be moot.)

As most of the estate will still be going to his wife there will be no IHT to pay based on the figures given, that would only happen if a sum greater than his nil rate band was going to his children.

Any part of the estate not going to his wife will simply reduce the amount of his no rate band that can be passed to his wife. In the long run this is likely to lead to a IHT bill that could force the sale of the family home if that has not alreading been pushed through by the step children.

In reality trying to keep possession of a family home though several generations is very difficult, unless you are going to go back to the past and leave everything to the oldest child.

macca1974

There wouldn't be any IHT as the parts of the estate going to your mother are exempt and the balance is under your stepfathers nil rate band.

Not a great situation, I would have thought that the solution would be to check the will with the solicitor to see if still valid and if so good news. If not, then would it not be possible for your mother to raise the £125K from the house via equity release?

TBagpuss

If they are correct and the will is invalid (which it will be if it was not made in contemplation of the marriage) then his children are entitled to the £121 you mention (or less, once funeral costs and debts are cleared)

Your mum may be able to avid selling the house if she can buy them out - the value of the hosue would need to be agreed so that the accurate value of your step-dad's estate can be worked out. If they are due a total of £121K then your mum can think about how to raise it - she might be able to get an equity release mortage, or alternatively, it might be possible for you / your siblings to ;end her to money, or indeed to buy a % interest in the house so it was owned by you and her. Obviously how that would work would depend on a number of factors - if you already wn a property then bbuying a share of hers would attract aditional stamp suty, so it might be better for you to raise money by remortgaging your own home, and then to lend it to her. This could be secured by way of a legal charge against the house which would safeguard your position.

Alternatively of couse, your mum could sell the house and downsize, and there would be nothing to prevent you or other family members buying the property at an open market value if you wanted to kep it in the family.

As adminstrator of her husband's estate, your mum does have an obligation to adminiter the estate correctly. I agree with Crabapple that it may be sensible for her to instruct a solicitor (who will be paid out of her husband's estate) to assist, as that will give her a 'buffer' between her and the stepchildren.

If the stepchildren were to agree to defer a sale of the property then it would at that point probably be sensible to have a deed of trust drawn up and for one or two of them, as trustees for them all, to added to the deeds (I don't think they could all be added as you I belive you can't have as many of 6 people on land registry documents)

Their interest would be for a % of the property - it would not be 'frozen' at the current value - effectively they would be agreeing to invest their inheritance in the property, so would be entitled to any 'return' by way of an increase in value, and it would be normal in that sort of situation forthe trust deed to also include requirements about maintenance of the property , and who would be responsible for any costs.

It is possible that she might be able to argue that she should be entitled to remain in the hosue during her lifetime - this gets into airly complex areas of law relating to constructive trusts and she would nbed to get some expert advice.

A situation where she refused to sell and the children take her to curt could be extremely expensive.

Ifthe hosue is worth £900K and she only needs to raise £120K it should be possible for her to do that by way of a mortgage or equity release, if she wants to, but of course she will ned to decide whether she would prefer to move to a smaller property and not have to take on that debt.

It may be that the stepchildren would be opn to agreeing a bit of a delay if they know that she is working towards the house being sold (assuming she decides that she doesn't want to / isn't able to buy them out) if they are asking about 'any ideaa when' she is planning to sell then it might be possible to agree to market the hosue in (say) 6 months time, to give your mum a bit of time to greive and to consider her options.

theoretica

I think it worth consulting a solicitor as wills becoming invalid on marriage was surely not intended to decrease the amount the spouse inherits. I don't know if the powers that be have any discretion to accept the will without the mention of a planned marriage, but think it worth getting good professional advice on it!