Ex-husband, cancer, house sale

trailingspouse

Please help me to untangle this mess.

My husband and I split up nearly 3 years ago, amicably. Our divorce was finalised last week.

Neither of us can afford to buy the other out, so we put the house on the market and we accepted an offer on it last week. Today I put an offer in on a house for myself, which was accepted.

For the last year he hasn't been well, and has been diagnosed with cancer in four different sites. Today he learnt that he also has a tumour on his pancreas. He's going in on Monday for an operation on his bowel, and then they will start chemo for the pancreas. He's 63. It's really not looking good.

We're aware that our divorce means that our wills need to be re-written. I have an appointment to do mine next week, and I know he was intending to make an appointment too, but I don't know if he's managed it.

I have so many questions, so please forgive me if I sound overly businesslike - believe me, there are emotions going on as well.

• if he dies before the house sells, will everything be delayed by probate?
• if he dies intestate, will his half of the house go to his children (he has 3 adult daughters) - I'm fine with that, I just need to know. Or would it come to me as it's my family home?
  
• I continued to pay life insurance on him after we split up, as he was still paying half the mortgage. If he dies, I will be able to pay half the value of the house to his estate without having to sell the house.
  
• I'm hoping the whole thing will be finalised before anything happens to him, but it's really not looking good
  
• Is there anything I could/should be doing now to make things simpler in the long term?
  
• I just want to know what to do for best - I'd like him to get his half of the house money while he still has some time to do something with it.
  

Sorry if none of this makes sense - it's been a hell of a week.

Keep_pedalling

Intestacy rules mean his assets will go to his children, but whether that includes his share of the house depends on the type of ownership you have. If you are joint tenants then you will automatically become the sole owner. If you are tenants in common then his share will be inherited by his children. 

Should he die before the house sale is completed and your are tenants in common then completion will indeed be delayed until probate has been obtained. If joint tenants then you would be able to complete the sale yourself.

At the moment you each own 50% of the equity and although the insurance will pay off the mortgage I believe that his children will only inherit his share of the equity not 50% of the house value. This again depends on the house being held as TIC. 

Should he not be able to get his affairs in order because of his poor health you can always gift part of the insurance pay out to his children if, as it sound, you want to be fair to his children.

trailingspouse

Thank you Keep.

We're joint tenants. So house sale would go ahead, but instead of him getting half, I would receive the full amount? That changes things. I'd assumed his estate would be entitled to half of it. Yes, I would want to see his kids (my step-kids) right. But before I can do anything for them I need to know where I stand myself.

Let me get this straight.

• If he dies without making a will, and before the sale goes through, I get the house and I get the life insurance (which means the mortgage would be paid off). That would mean I could afford to stay here if I wanted to, or move elsewhere with greater choice than I have at the moment. I could afford to pay the step-kids what they would have inherited, but that would be my choice.
  
• If he makes a will, which presumably would not include me, and then dies before the house sale is complete, his beneficiaries would get half of the equity, and I would still get the life insurance. I could afford to pay the value of the equity out of the life insurance, so I wouldn't need to sell the house unless I wanted to.
  
• However, to quote Monty Python - he's not dead yet. If the house sale completes before he dies, he gets half the value, and I'm living in a smaller house (which I'm happy enough with, I like the house and I like the area). He also - and I don't want to lose sight of this - gets his money while he may still be able to do something with it.
• If I stop the house move, in expectation of him dying sooner rather than later - well, I don't know, that just doesn't feel right.

What a mess.

Sea_Shell

Making a will does not alter the ownership of the house, as far as i know.

He'd also have to sever the Joint Tenancy and make you both Tenants in common, then he could leave his share to whomever he chooses.

Manxman_in_exile

Just to clarify for the OP, does getting divorced revoke an existing will?  I had a feeling it didn't, but am I just getting mixed up with separation?  (It makes sense for divorce to revoke a will, but I wasn't sure... )

GrumpyDil

It doesn't revoke the will but does alter the interpretation of the will as the divorced spouse is treated as having died on the date the divorce is finalised. 

getmore4less

As you are both legal owners

then if one of you dies you won't need probate to complete the sale, if both of you die then probate for the last to die will be needed.
(does not matter if joint or TIC)

Divorce does not invalidate wills

They are as if you pre deceased each other this may or may not be an issue depending what the wills say, there may not be any intestacy if the will takes account of you predeceasing as could yours.. 

You say joint tenants

That could be a significant issue  as you cannot assume he will die first or you won't both die before something can be done with your estate if you die second,  as well as him inheriting the house if you die first 

Also it means the current wills cannot have any distribution for the property on first death,  but as you are both dead(for the wills) that may be ok if they have covered being second to die.


One option which can be done quickly(talk to the solicitor when you are looking at your will) is to sever the joint tenancy 
Check his current will to make sure that works for him post divorce


Haveing read your previous posts I think you need look at the sale will got through scenario.
Do you really want to be changing you mind and keep the place whatever happens.

getmore4less

Sea_Shell said:

Making a will does not alter the ownership of the house, as far as i know.

He'd also have to sever the Joint Tenancy and make you both Tenants in common, then he could leave his share to whomever he chooses.

Severing a joint tenancy can be done unilaterally by either party by notice to the other.
The potential issue here is the ex loses capacity.

Forgot to say LPA should be in place for both as it gets even messier if one or both lose capacity.

Manxman_in_exile

GrumpyDil said:

It doesn't revoke the will but does alter the interpretation of the will as the divorced spouse is treated as having died on the date the divorce is finalised.

Thanks.  I thought there was something about divorce.getmore4less said:

...

Divorce does not invalidate wills

They are as if you pre deceased each other this may or may not be an issue depending what the wills say, there may not be any intestacy if the will takes account of you predeceasing as could yours.. 

You say joint tenants

....

Also it means the current wills cannot have any distribution for the property on first death,  but as you are both dead(for the wills) that may be ok if they have covered being second to die.


... 
Check his current will to make sure that works for him post divorce


...

So the current wills need to be checked for their post-divorce effect?

TBagpuss

Manxman_in_exile said:

GrumpyDil said:

It doesn't revoke the will but does alter the interpretation of the will as the divorced spouse is treated as having died on the date the divorce is finalised.

Thanks.  I thought there was something about divorce.getmore4less said:

...

Divorce does not invalidate wills

They are as if you pre deceased each other this may or may not be an issue depending what the wills say, there may not be any intestacy if the will takes account of you predeceasing as could yours.. 

So the current wills need to be checked for their post-divorce effect?

Yes. It may be fine - in a lot of cases, the will will appoint the spouse as executor and leave everything t them , and say that if the spouse dies first then (say) children are appointed as executors and inherit. So post divorce, the will is read as if spouse has predeceased, and so the appointment of the children as executors and gifts to them as beneficiaries take effect.
It can get more complicated if the will didn't provide for alternative executors or beneficiaries, r if those appointments were made when the spouses were married and may have chosen the same people - e.g. you might end up with a situation where the replacement executors were (say) Wife's brother and Husband's sister, or where the beneficiaries include both parties children and step children, which of course may no longer be appropriate.


In this case, if OPs husband has seen anyone about making a will I would expect that person to have advised him to sever the joint tenancy, as if he doesn't, then regardless of what he puts in the will, (or indeed if he dies intestate) if he dies before the sale of the house completes then the property will pass to OP as the surviving joint owner.

OP, you may also want to double check the terms of the life insurance policy - if is definitely just life insurance, or is it life and critical illness, in which case it may pay out now rather than on his death? 

getmore4less

Should have added earlier that severing a joint tenancy can happen by circumstance 
(there are some fancy legal terms for this)

eg if both partied have will that say their shares of the house(bought before the wills were mad) that can indicate that there was an intent to sever the joint tenancy even if the land reg did not get updated.

I would have thought this was something you deals with at time of divorce and the financial settlement.