Will involving lack of mental capacity

bigadaj

Hi everyone,
My mother passed way last week, we have a copy of the will, which is a simple mirror will with everything passing to me as the only child on the second death. My parents have been in a care home for the last few months, and my father lacks mental capacity and was diagnosed with mixed dementia in February. The survivor is named as the only executor in the will, and obviously my father is not capable, so I've spoken to the solicitors who drew up the will and am waiting for their contact to discuss, I'm named as the executor on the second death. I could probably do the executor role myself as we have details of my mother's bank accounts from the care home admission, and there would be no inheritance tax as the money and property would pass to my father. I'm not sure whether it would be possible for me to become an executor and apply for probate or whether solicitor's would need to get involved with the potential for court of protection applications, my father refused POA previously. The other issue is that the council have been paying care home fees and will need to be reimbursed from my mother's estate so I'll also try and speak to them, death has been registered and notifications made using the tell us once facility, any comments or observations would be welcomed. 

Mojisola

bigadaj said:

The other issue is that the council have been paying care home fees and will need to be reimbursed from my mother's estate

The council can't claim on the estate for past payments but your father will be self-funding from now on.

xylophone

The survivor is named as the only executor in the will, and obviously my father is not capable, so I've spoken to the solicitors who drew up the will and am waiting for their contact to discuss,

Below seems relevant to the situation.

https://www.gov.uk/applying-for-probate/if-youre-an-executor

When an executor is unable to apply for probate

A replacement executor should apply for probate if the executor is unable to, for example because:

• they’ve died
• they do not have ‘mental capacity’ - get a doctor to fill in a mental capacity form and send it with the probate application

bigadaj

Mojisola said:

bigadaj said:

The other issue is that the council have been paying care home fees and will need to be reimbursed from my mother's estate

The council can't claim on the estate for past payments but your father will be self-funding from now on.

Thanks for the response, her costs have been accruing and will need to be be paid from the estate. we have submitted bank statements for the council to assess but they have been slow in responding. My father has been assessed as an EMI case, so essentially a level 3, and is fully NHS funded eventhough it is a private nursing home. My mother was 'level 2' so had NHS contribution for nursing care but self funded for the remainder which was around 75% of the total.

sarahjane1408

Hi

I am sorry to hear about your mum. 

It depends slightly on how the Will is worded but if the executor appointment says something along the lines of 'I appoint [dad's name] but if he has predeceased or is unable to act then I appoint [my daughter]' then you should be able to apply as substitute executor.  You would have to supply medical evidence to the Probate Registry regarding dad's dementia alongside the grant application.

If the Will doesn't include the provision of dad being unable to act, there are other options but I would use that as a starting point. 

Best wishes

Sarah