Wills and residency rights

damonthebuilder

Evening all,

I've asked this question before, but I cannot find the thread, so I'll try again.

My mother is, thankfully, still very much alive but she is in poor health, and now the New Year is with us, she wants to ensure all her affairs are straight "... in case anything should happen, I'm not getting any younger..."
After the death of my father 5years ago, she had a will drawn up by a will writer.
There's the usual provisions - wishes of burial, sums for each of her grandchildren etc, and the rest of her estate split equally between my younger brother, sister and myself.
My mum owns her own house, but unfortunately my sister and her two teenage children live with her.
This arrangement was supposed to be temporary (a couple of months) but 3 years down the line is still ongoing.

My mother (and in all honesty, my brother and I also) is concerned that should the inevitable come to pass before my sister moves out (which is not likely) then we will have a problem selling the house, and our share of any inheritance effectively usurped by my sister's residency.

We'd be grateful of any advice - does my sister have any residency rights? Should my mother change her will to include a clause that the house must be sold etc?

Many thanks
DTB

Jenniefour

Yes, your mother can specify the house is to be sold. I suggest she gets a new will drawn up by a solicitor (not a will writer) and explains the situation and her wishes to them. They will be able to advise.

Savvy_Sue

You say your mother is 'concerned' that they will still be there when she dies, but what exactly is her concern? that having them in residence will make the house difficult to sell, or that selling the house after her death will make them homeless?

Sea_Shell

Always a tricky one, as if your Mum is worried that your Sister could become homeless (and unable to afford anywhere else, even with her share of the Inheritance) then if discussed with all the "what ifs" she might actually decide to include a "right to reside" clause into the will instead. thus compounding the problem for you. But i'm sure that she would also be able to see the other side of the coin, and that on the other hand she has no intention of "disinheriting" you either.

Red-Squirrel_2

It would be more honest of your mother to start the process of having the sister move out now, while she is still alive and there can be no question that this is what she wants rather than letting the situation drag on and leaving it as a problem for you and your sister to sort out after she’s gone, possibly affecting family relationships forever.

If it was never meant to be permanent it should be possible to do it sensitively.

Malthusian

1/3rd of a four bedroom house should easily raise enough money to rent a 3 bedroom house until the teenagers are adults. (Or for that matter to raise a deposit to buy one, but I assume the sister is unlikely to get a mortgage for the same reason that this "temporary" arrangement has become permanent.) And that's assuming the mother has no assets other than the house.

There is no reason for the sister and her children to be homeless. She will have to make some tough choices at some point down the line, but unless the mother is willing to disinherit her other children entirely, that's going to happen anyway.

Mojisola

damonthebuilder wrote: »

My mum owns her own house, but unfortunately my sister and her two teenage children live with her.

This arrangement was supposed to be temporary (a couple of months) but 3 years down the line is still ongoing.

Should my mother change her will to include a clause that the house must be sold etc?

We have a clause like that in our wills - if any of our children are living with us at the time of our deaths, they have the right to stay for a set number of months (and must pay all insurance, upkeep, etc) before the house is to be vacated and sold.

We tried to be fair to all sides - the resident child doesn't have to pack up and find a new home immediately but the other beneficiaries don't have to wait too long for their inheritance.

Sea_Shell

Mojisola wrote: »

We have a clause like that in our wills - if any of our children are living with us at the time of our deaths, they have the right to stay for a set number of months (and must pay all insurance, upkeep, etc) before the house is to be vacated and sold.

We tried to be fair to all sides - the resident child doesn't have to pack up and find a new home immediately but the other beneficiaries don't have to wait too long for their inheritance.

What if they dig their heels in and refuse to vacate by that date?

Mojisola

Sea_Shell wrote: »

What if they dig their heels in and refuse to vacate by that date?

A court case, probably, to force them to comply.

TBagpuss

I agree with Jenniefour, your mum should see a solicitor to get her will updated, and also to get advice about what she can do to protect the other siblings.
It may well be appropriate to include provisions that the house should be sold and also that any adult child living in the house at the date ofMum's death should have the right to remain for (sy) 6 months from date of death sdubject to them paying all outgoigns on the property.

it might be possible to build in a provision that meant that if a child didn't then vacate to facilitate a sale, that any costs involved would be taken from their share of the sale proceeds, rather than being paid by the estate before the funds are divided.

Ideally, however, your mum should *also* be having a conversation with your sister about what steps she is taking to move on, or even about whether, given the arrangements has turned out to be longer term than originally planned, to set up a formal lodger's agreement and start charging her market value to live in the property (which might encourage her to move on now, and also make it harder for her to claim she was financially dependent, later).

If you think it is going to be a problem, you could also consider suggesting to your mum that she think about whether it might be better to appoint solicitors as executors, rather than having you or your siblings do it, as it may avoid creating family feuds if it is an outside telling your sister that she has to move on!

(Your mum could expressly instruct the solicitors that she would wish them to stand down as executors in your / other siblings favour if you requested it and/or if none of the children are living when the house when she dies - while not binding, such request would be followed by a reputable solicitor, best practice is for them to take into account the reason they were named, and what has changed.

macman

Mojisola wrote: »

A court case, probably, to force them to comply.

Since they are not tenants, there should be no need to evict them. They have no more rights than a house guest or lodger, and can be asked to leave at any time by the owner or executors.
If they refuse to leave, they are trespassing.