Probate Complication

Bobo_uk

Hi,

I wonder if you could offer some advice regarding a will and probate that seems to have become more probalematic than was intended.

My wife’s father passed away recently leaving a small amount of cash and a property split between brother and sister.

The will has a clause that Staes that her brother can lives in the property Rent free for as long as he wishes or until his death. We are fine with this we have no real desire for the house or any proceeds.

This is slightly complicated by the fact that her brother is partially physically/mentally  disabled and therefore lives from Benefits and requires some level of assisted living that will increase as his condition progresses.

My wife’s auntie was the names executor of the will.

However the solicitor has advised that as executor and trustees of the will she would become liable for ensuring that my wife’s brother was able to maintain and pay for the upkeep of the house. Clearly this would be a liability for her on the basis that there is little cash and just the house but only a very small income that as best we are unsure will be enough to live on.

She wishes to renounce her responsibility as executor/Trustee and that my wife and her brother have an option to take on the role of Personal Representatives for the estate.

At present we are unable to speak to the solicitor so I’m turning to the internet to try and find out what this means.

Assuming when probate is achieved the house would be in joint names would this then makes us liable for the upkeep and maintenance of the house ?

If correct then we have inherited and liability that we have no option other than to accept?

Her brother is unlikely to ever have enough income to manage the house so imagine the only option will be for us to sell the home and split the proceeds between brother and sister? ( He is happy to do this if needed)

Anything else we should be thinking or consider?

SeniorSam

There is the value of the house to consider as security for any loan that may be needed to maintain the property. What is the market value of the house at present?

Taking on the responsibility as executors requires that you carry out the wishes of the Will, however, the Will can be changed within 2 years of death by a deed of variation

Flugelhorn

when probate is granted the house will remain as the property of the estate until you wish to transfer to joint names (if that is what you want) - I just wonder if finding somewhere smaller that would be more suitable for the brother that he can manage on his income may be a better option, making a clean break now otherwise gets complicated over time. 

Nothing to stop you doing a DoV if your wife wants brother to have a greater share of the money to get somewhere new. 

Bobo_uk

Flugelhorn said:

when probate is granted the house will remain as the property of the estate until you wish to transfer to joint names (if that is what you want) - I just wonder if finding somewhere smaller that would be more suitable for the brother that he can manage on his income may be a better option, making a clean break now otherwise gets complicated over time. 

Nothing to stop you doing a DoV if your wife wants brother to have a greater share of the money to get somewhere new. 

Yeah its a consideration although the terms of will state he can live in this house rent free until he chooses to live or die, if we sell and get him a more suitable place he will just be forced to spend the money raised on rent until he runs out and then we are not sure what happens when he has nothing left. 

The whole estate is only worth about £200k.

Bobo_uk

That should have said LEAVE or dies not Live or Die.....

Savvy_Sue

Bobo_uk said:

Flugelhorn said:

when probate is granted the house will remain as the property of the estate until you wish to transfer to joint names (if that is what you want) - I just wonder if finding somewhere smaller that would be more suitable for the brother that he can manage on his income may be a better option, making a clean break now otherwise gets complicated over time. 

Nothing to stop you doing a DoV if your wife wants brother to have a greater share of the money to get somewhere new. 

Yeah its a consideration although the terms of will state he can live in this house rent free until he chooses to live or die, if we sell and get him a more suitable place he will just be forced to spend the money raised on rent until he runs out and then we are not sure what happens when he has nothing left. 

All the time he is not paying any rent, he can't get any assistance with it, but some help would probably be available through Housing Benefit once his savings dip below a certain level. 

However, you said in the first post that he lives on Benefits - are any of them means tested? If so, his inheritance will affect these. (DLA / PIP are NOT means-tested). 

Another question: how old is your brother-in-law, and does he have a normal life expectancy? That's not a question you have to answer here, but it is a question which should be considered. Along with who manages his affairs, and is now the time to apply for Power of Attorney / Deputyship for him if he cannot manage things himself?

Important to consider what's in his best interests? If he won't happily cope with living alone, with whatever level of assistance he has, that would lead me to think about assisted living sooner rather than later. 

It is all very difficult, I am sure. 

Mojisola

Bobo_uk said:

Yeah its a consideration although the terms of will state he can live in this house rent free until he chooses to live or die, if we sell and get him a more suitable place he will just be forced to spend the money raised on rent until he runs out and then we are not sure what happens when he has nothing left. 

The whole estate is only worth about £200k.

Would the sale of the inherited property to enough to buy a suitable place?

Bobo_uk

Savvy_Sue said:

Bobo_uk said:

Flugelhorn said:

when probate is granted the house will remain as the property of the estate until you wish to transfer to joint names (if that is what you want) - I just wonder if finding somewhere smaller that would be more suitable for the brother that he can manage on his income may be a better option, making a clean break now otherwise gets complicated over time. 

Nothing to stop you doing a DoV if your wife wants brother to have a greater share of the money to get somewhere new. 

Yeah its a consideration although the terms of will state he can live in this house rent free until he chooses to live or die, if we sell and get him a more suitable place he will just be forced to spend the money raised on rent until he runs out and then we are not sure what happens when he has nothing left. 

All the time he is not paying any rent, he can't get any assistance with it, but some help would probably be available through Housing Benefit once his savings dip below a certain level. 

However, you said in the first post that he lives on Benefits - are any of them means tested? If so, his inheritance will affect these. (DLA / PIP are NOT means-tested). 

Another question: how old is your brother-in-law, and does he have a normal life expectancy? That's not a question you have to answer here, but it is a question which should be considered. Along with who manages his affairs, and is now the time to apply for Power of Attorney / Deputyship for him if he cannot manage things himself?

Important to consider what's in his best interests? If he won't happily cope with living alone, with whatever level of assistance he has, that would lead me to think about assisted living sooner rather than later. 

It is all very difficult, I am sure. 

Thank you for such a detailed reply it is very helpful.
We don't believe he is capable of living alone and he does not wish to live in the house long term, his mobility is deteriorating and his condition is degenerative and will worsen, he is early 40's and his lifespan will be limited.

He would prefer assisted living as would we however Social Services don't seem to recognise that need at present and have put in place daily 15 min visits from a carer.
He cannot leave the house alone, he cannot cook a meal other than Microwave means as he does not have full use of his hands.

Social services do not seem to want to entertain asissted living however in my opinion his quality of life is extremely poor where he is.

He only Receives  PIP and were previously living from his fathers pensions and benefits which have now stopped.

From my limited understanding of these things it seems your best option is to sell the property, use the funds to pay for his care and them hope social care will take over when the money runs out.

Pennylane

Your wife’s brother is entitled by law to an Annual Review.  As his (presumably) next of kin she should attend and ensure he then gets a Care and Support Plan drawn up.  If he has not been having annual reviews she needs to ask why not and insist that this is done asap. Don’t let social workers fob you all off.

Who is Power of Attorney? That is very important.

Not much of a life for him is it really being isolated, not able to go out and barely able to feed himself. Sounds to me like assisted living is just what he needs.  

Savvy_Sue

It could be worth you finding out about supported living settings near you or near him (if different) - Google that plus any 'conditions' which might help. Camp Hill Community is one i know of, Manor Community is another I've randomly found. A conversation with Mencap could be helpful:  Https://www.mencap.org.uk - they also offer supported living, and might be able to help with the trust.

JJWSJS8700

If the brother is has been assessed as only needing 15 minute Carer visits, he must be of sound mind and social services say he doesn’t need much care.

Ask them to reassess and let him give his own views and opinions about what he wants, as he is allowed to live there for the remainder of his life, rent free.