Deed of variation query - passing inherited house to my sister

SarahB16

This is my first post to the MSE forum and I am looking for some advice please.  If I haven't provided sufficient information please just say.  

My mother (aged 78) wrote her will approximately 10 years ago leaving her house solely to me.  

I am thinking ahead, as my sister would like to live in/own our mother’s house when our mother passes.  My sister and her husband own their own house and so do I but I have no desire to live in my mother's house but my sister does.  

This is where I would be grateful for some advice please.  Am I correct in thinking a deed of variation could be written as though the house had been left to my sister and separately we have another legal document where she transfers a certain amount of money to me?  I believe the time limit is two years to do this from the reading of the will?  My sister and I would I presume need to instruct two separate solicitors or could one solicitor act for both of us?    

The reason I am suggesting this as otherwise surely there is stamp duty to pay if my sister wished to buy our mother’s house from me? 

Of course circumstances could change and my mother may need to sell her home whilst she is still with us but I would rather consider options now as I know it will be very upsetting to think about this when the time comes.  

Thank you in advance for any help and guidance. 

  

Flugelhorn

is there a specific reason why your mum is leaving the house to you ? (you don't have to explain if there is )

if your sister hasn't actually been written out of the will is she  getting money / other assets  instead? 

couldn't you speak to mum and ask if it would be possible to change it so you are both left what would be most useful to each of you?

SarahB16

is there a specific reason why your mum is leaving the house to you ? (you don't have to explain if there is )

Yes, there is a very specific reason (and I understand my mum’s reasoning and this has been noted in the will).  A question I have for another day is how to minimise somebody contesting a will but that’s for another day. 

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if your sister hasn't actually been written out of the will is she  getting money / other assets  instead? 

My sister does not receive anything in the will but her two children do receive something.

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couldn't you speak to mum and ask if it would be possible to change it so you are both left what would be most useful to each of you?

I hope from my answers above this explains the situation. 

My mum’s thinking and probably mine too is that my sister will likely sell her own house (as she prefers my mum’s house) but that she will need to give me the value or near to the market value that my mum’s house is worth.

I would never sell the house to anybody else knowing my sister wished to live in the house.    

 

poppystar

There is another potential problem here too. If one of you is left the property and the other money then if the property has to be sold to pay for care that bequest would then fail and you would get nothing. Obviously your mother could rewrite her Will if the house was sold but what if it was to be sold at a point where she was not competent to make a new Will? 

SarahB16

Poppystar, thank you for your reply but I think you may have written it before you saw my reply.  

Virtually everything has been left to me and I know if my mum needed care the house may need to be sold to pay for her care.  

Thank you again for your post, very much appreciated.  

Marcon

SarahB16 said:

This is my first post to the MSE forum and I am looking for some advice please.  If I haven't provided sufficient information please just say.  

My mother (aged 78) wrote her will approximately 10 years ago leaving her house solely to me.  

I am thinking ahead, as my sister would like to live in/own our mother’s house when our mother passes.  My sister and her husband own their own house and so do I but I have no desire to live in my mother's house but my sister does.  

This is where I would be grateful for some advice please.  Am I correct in thinking a deed of variation could be written as though the house had been left to my sister and separately we have another legal document where she transfers a certain amount of money to me?  I believe the time limit is two years to do this from the reading of the will?  My sister and I would I presume need to instruct two separate solicitors or could one solicitor act for both of us?    

The reason I am suggesting this as otherwise surely there is stamp duty to pay if my sister wished to buy our mother’s house from me? 

Of course circumstances could change and my mother may need to sell her home whilst she is still with us but I would rather consider options now as I know it will be very upsetting to think about this when the time comes.  

Thank you in advance for any help and guidance. 

  

Two year from the date of death ('reading the will' is what happens in Agatha Christie books; doesn't actually happen in real life!).

You certainly would need two different solicitors; there would be a clear conflict if the same solicitor acted for both of you.

SarahB16 said:

Yes, there is a very specific reason (and I understand my mum’s reasoning and this has been noted in the will).  A question I have for another day is how to minimise somebody contesting a will but that’s for another day. 

  

Better to ask the questions while the testator is still alive and capable of rewriting a will which sounds like a heap of trouble! Has this all been done with proper advice from your mother's solicitor, who is best placed to advise her on achieving her objectives? It is far easier for her to consider the options rather than your doing so after the event, although I appreciate that isn't always possible.

But from what you've said of your mother's thinking, a change of will could make life a great deal simpler and more certain for both you and your sister.

SarahB16 said:

My mum’s thinking and probably mine too is that my sister will likely sell her own house (as she prefers my mum’s house) but that she will need to give me the value or near to the market value that my mum’s house is worth.

That's easy enough to sort out in a properly drafted will. Doesn't sound as if your mother has been particularly well advised, or perhaps she just didn't quite express her instructions clearly enough. From what little you've said, the will is going to create more problems (and possibly costs) than it solves.

Spendless

SarahB16 said:

is there a specific reason why your mum is leaving the house to you ? (you don't have to explain if there is )

Yes, there is a very specific reason (and I understand my mum’s reasoning and this has been noted in the will).  A question I have for another day is how to minimise somebody contesting a will but that’s for another day. 

  -----------------------------------------------------------------------------------------------------------

if your sister hasn't actually been written out of the will is she  getting money / other assets  instead? 

My sister does not receive anything in the will but her two children do receive something.

 -----------------------------------------------------------------------------------------------------------

couldn't you speak to mum and ask if it would be possible to change it so you are both left what would be most useful to each of you?

I hope from my answers above this explains the situation. 

My mum’s thinking and probably mine too is that my sister will likely sell her own house (as she prefers my mum’s house) but that she will need to give me the value or near to the market value that my mum’s house is worth.

I would never sell the house to anybody else knowing my sister wished to live in the house.    

 

If your sister would be selling her house in order to buy your Mum's house from you, why would you need a deed of variation in the  first place?  Surely she'd just sell her place and buy the inherited house from you? 

Do you mean doing a DoV so she inherits at least some of the house too? If so, then above (to me at least) reads that your Mum is aware this is going to happen so knows you are going to go against her reasoning for leaving your sister out of her will, though you understand it.. At the same time you're wanting info about if someone contests a will.

This sounds like it has the potential to be messy and costly. 

theoretica

How much would the stamp duty be that you are trying to avoid?

poppystar

SarahB16 said:

Poppystar, thank you for your reply but I think you may have written it before you saw my reply.  

Virtually everything has been left to me and I know if my mum needed care the house may need to be sold to pay for her care.  

Thank you again for your post, very much appreciated.  

Yes, our posts crossed. 

As your sister gets nothing so the deed of variation would be just one way I’m not sure if a document with her agreeing to pay the value to you would actually get around the stamp duty issue. Hopefully someone else will be able to advise on that. If it was just a matter of exchanging bequests that might work but as she currently gets nothing she is still effectively ‘buying’ the property. 

Keep_pedalling

This would be seen by HMRC as tax evasion so you should not do it. 

A deed of variation could certainly reduce the amount of stamp duty paid but not illuminate it. For example if the house is worth £400k and you mother leaves £100k in other assets, a DoV leaving your sister a £250k stake in the house would mean she would only pay stamp duty on the £150k share she buys from the estate.

bobster2

SarahB16 said:

Poppystar, thank you for your reply but I think you may have written it before you saw my reply.  

Virtually everything has been left to me and I know if my mum needed care the house may need to be sold to pay for her care.  

Thank you again for your post, very much appreciated.  

You mean specific amounts are left to other people - and there is a residuary clause leaving the remainder to you? If it's the other way around - specific amounts to you and residuary for others then that's different.

Because if the house needs to be sold to pay for care - the equity that is not used to fund the care would likely go to the beneficiary of the residuary clause.

So if some owns a £500,000 house and has £40,000 in savings and the Will says house to John, £30,000 to John and remaining estate to cats charity - if the house is sold for £500,00 to pay for care (but only £50,000 is used for care) then cats charity gets £460,000.