Will problem

mouse63

My mother's will states that £45k is left to named beneficiaries, 50% of the house to be left to A and the remaining 50% into the residuary estate. The will also states that A can live in the house for a period of 3 years after her death without the property being sold. There are 4 children in total.

She has just moved into a care home which she is self funding and it is likely that all her ready cash will be used up providing this care.

My question is would the house have to be sold to cover the £45k left to named beneficiaries, in which case would A lose his 50% share of the property or get 50% of what was left or get 50% of full house value before paying £45k

konark

Difficult situation, the house may yet have to be sold to cover care=home costs.

It would depend on the state of affairs on death. If she died with zero cash but still owning the house the cash gifts would fail and the house gifts would stand.

If the house is sold and there are still sufficient funds the cash gifts would stand and the house gifts would fail.

There may be a conflict of interest between the person with Power of Attorney and the beneficiaries. e.g if the person with POA is A they may well be loathe to sell the house to pay care fees as bang goes their bequest

Keep_pedalling

If she still has the mental capacity she should draw up a new will, the current one is not fit for purpose and illustrates the danger of leaving specific property to beneficiaries.

Her POA has to act in her best interests, and it is likely that using up the cash first is in her best interests, as it is less vunerable to inflation than cash is and it could also be rented to obtain some income for her.

What relationship is A to her and does A currently reside in her house?

getmore4less

Is A living in the house now?

The exact terms of the bequests and order can determine what happens.

mouse63

A is a son, two of the other children have Poa under an epa. They have tried to suggest to mum and A that the house needs to be sold in due course to ensure mums continuing care but both are adamant that this should not happen, A thinks that Social Services should pay. A is living in the house and has done for some years.

The order in the will is the cash bequests are mentioned first, then the details about the house.

Yorkshireman99

mouse63 wrote: »

A is a son, two of the other children have Poa under an epa. They have tried to suggest to mum and A that the house needs to be sold in due course to ensure mums continuing care but both are adamant that this should not happen, A thinks that Social Services should pay. A is living in the house and has done for some years.

The order in the will is the cash bequests are mentioned first, then the details about the house.

The law is quite clear. The attornies have to act in the best interests of the donor. Their situation must not be allowed to alter that. Is the resident A paying any rent?

Savvy_Sue

How old is Resident A?

Keep_pedalling

mouse63 wrote: »

A is a son, two of the other children have Poa under an epa. They have tried to suggest to mum and A that the house needs to be sold in due course to ensure mums continuing care but both are adamant that this should not happen, A thinks that Social Services should pay. A is living in the house and has done for some years.

The order in the will is the cash bequests are mentioned first, then the details about the house.

The LA will only disregard the house if A is over 60 or is incapacitated in some way. If neither of those facts apply then when the cash runs out the house will have to be sold.

Regardless of the position of the house, if she wants to be fair to all her children then she needs a new will that will do that for all possible outcomes.

Slinky

Does mum still have the mental capacity to make a new will?

-taff

mouse63 wrote: »

They have tried to suggest to mum and A that the house needs to be sold in due course to ensure mums continuing care but both are adamant that this should not happen, A thinks that Social Services should pay..

Doesn't matter if they are adamant. If she intentionally deprives herself of assets, they can recover any monies form A if she gifts it to him now

Doesn't matter if A thinks that, they'll still sell it to pay her costs if she lives long enough that her current finances run out. [unless he's over 60]

securityguy

I think situation over the sale of houses is more complex.

My great aunt, in the aftermath of the entirely proper operation of a CoP PoA by my parents over my grandmother, wrote a PoA. This restricted the sale or rental of her house; she was upset that my grandmother's house had been sold to fund care, claiming that my parents should instead have paid for it. This is silly as the house would ultimately have gone to them and been sold anyway, but I think great aunt harboured a grudge that my parents had assumed my grandmother would never return home.

My cousins are now in the position of having a mother in council-funded care with advanced dementia, and a decaying house they can't sell or let; they don't live nearby, and don't have the resources to maintain or insure an empty property. Neighbours are upset about living next to a decaying house, the house itself is losing value, etc. I naively assumed that the council would have the power to break this logjam, and could either themselves or with the co-operation of the children go to the CoP and over-ride the PoA, but it appears not. I wondered if the "empty house" provisions would at least allow it to be let, but in the state it is that is not possible. My cousins can't afford to, and for various other reasons do not want to, go to the CoP themselves, and to a certain extent why should they: the estate is ultimately going to be insolvent anyway, so it would be throwing good money after bad.

It's a complete disaster: when the music stops, the house will be sold by the executors for considerably less than it would have fetched as a going concern, and all the money will go to the council, who will also probably chase the estate for more money. I have advised the cousins to decline to be executors, but they aren't as cold-blooded as me, and see it as their responsibility to deal with their mother's bad decisions.

So in "Doesn't matter if A thinks that, they'll still sell it to pay her costs if she lives long enough", I don't quite understand what powers the council have to demand the sale of a house in which someone is living, rather than demand the value of the house from the estate. I think that if you have someone living in a property owned by someone in care, the council's power to seize the house and sell it is either non-existent, or a power that (based on a sample of one!) they are very reluctant to use. In my great aunt's case, the property is vacant, and the council are still apparently unable to force a sale without the consent of the owner.