House left to children, dad in care

dixie_dean_2

Hi

Not sure that this is the right place for this but for some reason I cannnot post in the benefits board and some of the others - don't know why. Maybe a guide will move this to somewhere better.

Anyway, a friend's mum recently died and in the will left the house to him and his sister. Their dad is ill and has been in care for some years. The mum had taken advice and had done the will so the kids would get the house, rather than it being sold to pay for the dad's care. I'm not sure of all the details but i think the plan is for them to use half the money to help [pay for dad but them to split the other half. However, having spoken to the council and CAB (who were not at all helpful apparently) my mate is now very concerned that all the money from the house will have to pay for his dad. I think the issue is something to do with depriving the dad of assets. I realise this is all very vague but any advice at all would be appreciated. Its obviously a terrible position to be in anyway but then to lose the house would make it even worse.

Cheers in advance.

silvercar

AFAIK, it would depend how the house was owned.

If the house was owned as joint tenants then the ownership passes to the husband on the wife's death. She cannot then leave it to her children.

If the house was ownes as tenants in common then they each owned their half. So the wife can leave her half to who she pleases. The half that is owned by the husband couldn't have been sold without the wife's consent when she was alive and selling half a house is not possible. Her death and passing of her half of the home to the children would not affect the care home situation as the husband was not in a position to benefit from the house sale whether the wife was alive or not.

Happy to be corrected, but that is my thinking.

msmicawber

It's not clear whether your friend's mother left the entire house to the children because it was wholly in her name and she was entitled to do so, or whether she left her half of the house to the children.

The general rule of thumb seems to be that a property can't be sold to pay for care if there is someone vulnerable living in it (spouse, under 16, over 60, incapacitated person of any age or carers of those people), so it looks in this case as though the house could be sold to pay for his care. However, what is not clear is whether the local authority could demand either the entire proceeds or just half of them to fund care as it isn't clear whether he had any stake in the house at any time.

Do you know from whom your friend's mum sought advice? With such a large sum of money involved, I would get proper advice from a solicitor rather than Council & CAB. Your friend may also want to contact Help the Aged since I don't imagine this is the first time this question has cropped up.

dixie_dean_2

I'll try and get some more details but thanks for the advice so far.

merlinthehappypig

I've been looking into this as well. As you have already been advised this is too important to take advice on a forum like this or from CAB or similar. Help the Aged are a good place to start or a local carer's group if you have one, but proper advice from a financial advisor or solicitor specialising in retirement is essential. There might be other factors to take into consideration such as inheritance tax.

The advice I have is that tenants in common prevents the house being sold to pay for care. The council can ask you to put a charge on the property so that when it is eventually sold they can reclaim their costs, but they cannot legally force you to do this, so just say no.

That said, this was advice specifically for my circumstances, so you need to take proper advice.

dixie_dean_2

Who did you see for advice?

real1314

I believe that if you can establish that only half the property can be used for care costs, you can ask the council to value the half that they can use, but as they could only sell this half on the basis that the other half is owned by the daughter/son, this would drastically reduce the value of the other half. This might be more favourable that letting them put a charge on the house.

merlinthehappypig

dixie_dean wrote: »

Who did you see for advice?

We saw a specialist retirement solicitor. His advice was that, in this situation, the house couldn't be sold and the council couldn't legally enforce a charge on the property unless we let them. I must stress, though, that this was specific to our circumstances and you need to seek professional advice based on your own situation.

SquatNow

The will is meaningless... if they are legally married the property now belongs to the dad. The council can take it to pay for care if they wish.

silvercar

SquatNow wrote: »

The will is meaningless... if they are legally married the property now belongs to the dad. The council can take it to pay for care if they wish.

Not if it was held as tenants in common, then each spouse can pass their half to whoever they choose.