if no will but deceased parent wants to give property to children and wife right to live in property

lr1277

Solicitors will visit where you want them to visit and will charge accordingly. When my dad was in hospital we started making enquiries about a solicitor coming to the hospital which they were quite willing to do. Didn't need to do that in the end.

But during Covid, mum and dad decided to update their wills. Solicitor came to the house for both:

1) getting their requirements

2) the solicitor and another member of staff came to the house to witness the signing of the wills

So it can be done.

elsien

Your mother needs to think very carefully before transferring anything to you because effectively she is giving up all her security. 

Why would any of  you want that for her? 

Whatever piece of paper she has saying she has the right to stay in the house, what if you fall out? What if you go bankrupt? Or if you get divorced on your share of the house is an asset? What if mums health means needs she needs care and giving the property away counts as deliberate deprivation of assets? And it removes any choices that she has to downsize or move somewhere more suitable for her in the future. All the sake of an “an inheritance”.

It doesn’t seem as if any any of you are really thinking this through properly and your mum is the one ending up with the short straw. 
The house might be in dad’s name now but as a marital assets it is half your mother’s anyway. 

I really hope that pressure isn’t being put onto her to agree something that really isn’t in her best interests and that you do what is right by her and not what is best for you,  because that’s not the same thing.

Keep_pedalling

F37A said:

Keep_pedalling said:

If the home currently owned jointly? If it is then the tenancy may need splitting from joint tenants to tenants in common otherwise you mother will automatically own the house outright as the surviving owner.

it is quite a standard clause in a will to make an immediate post death interest trust to a surviving spouse, which effectively makes the surviving spouse the soul beneficiary owner so you won’t actually inherit your fathers share until your mother dies so it does not effect your FTB status.

If your father dies intestate then your mother inherits the first £270 of her husband’s estate plus 50% of the remainder. The other 50% goes to his children. If possible you father needs to see a solicitor to get his will drawn up ASAP.

Home is owned entirely by dad. My mother is 72 herself so as per her wishes we may have to transfer from mum to children anyhow but with her right to live in property.

Thanks at the moment looks like he will die intestate so seems like either we do nothing and wait for property to pass to my mother (assuming marriage cert all good) then transfer to us children with right for mother to stay in. Or we can short cut process and get the will done now to pass property to children now with mum's right to stay in as long as she wishes. But looks like my dad wont be able to make it to a solicitors office as he deteriorating

In your shoes I would simply leave it as it is, it would be a mistake for your mother not to inherit the house or to transfer it later.. Not only does it provide her with security while she lives there it also provides her with security if she ever needs residential care because relying on the LA to do it is not a position anyone who can afford it should put themselves in if they want to maintain control and avoid risking over my dead body grange.

F37A

elsien said:

Your mother needs to think very carefully before transferring anything to you because effectively she is giving up all her security. 

Why would any of  you want that for her? 

Whatever piece of paper she has saying she has the right to stay in the house, what if you fall out? What if you go bankrupt? Or if you get divorced on your share of the house is an asset? What if mums health means needs she needs care and giving the property away counts as deliberate deprivation of assets? And it removes any choices that she has to downsize or move somewhere more suitable for her in the future. All the sake of an “an inheritance”.

It doesn’t seem as if any any of you are really thinking this through properly and your mum is the one ending up with the short straw. 
The house might be in dad’s name now but as a marital assets it is half your mother’s anyway. 

I really hope that pressure isn’t being put onto her to agree something that really isn’t in her best interests and that you do what is right by her and not what is best for you,  because that’s not the same thing.

Thanks - these are all fair points and some of what is not considered. The point about care is especially important. Although there is an element of honouring dad's wishes. My mum won't downsize she happy in 3 bed house. We all have a good relationship with mum so no issues there. Looks like best option is ask dad if he wants to do will? and explain what happens if not. If no attempt at will then property passes to mum via intestacy and get her to do will immediately. then inheritance at point of mother deceased whenever that may be. This looks like best approach. My mother says "property to children" with her right to stay in as long as she wants" not sure if there is a legal category for this. It may be that it is binary i.e property passes to mum or it is with children. But she may not know if there is a risk for her if its latter. 

Flugelhorn

If your father leaves the property to his wife then he cannot insist that she ultimately leaves it to you, she could remarry or leave it to Battersea Dogs' home  - it is hers to dispose of as she wishes

Of course most times widows leave it to  the children. 

Keep_pedalling

F37A said:

elsien said:

Your mother needs to think very carefully before transferring anything to you because effectively she is giving up all her security. 

Why would any of  you want that for her? 

Whatever piece of paper she has saying she has the right to stay in the house, what if you fall out? What if you go bankrupt? Or if you get divorced on your share of the house is an asset? What if mums health means needs she needs care and giving the property away counts as deliberate deprivation of assets? And it removes any choices that she has to downsize or move somewhere more suitable for her in the future. All the sake of an “an inheritance”.

It doesn’t seem as if any any of you are really thinking this through properly and your mum is the one ending up with the short straw. 
The house might be in dad’s name now but as a marital assets it is half your mother’s anyway. 

I really hope that pressure isn’t being put onto her to agree something that really isn’t in her best interests and that you do what is right by her and not what is best for you,  because that’s not the same thing.

Thanks - these are all fair points and some of what is not considered. The point about care is especially important. Although there is an element of honouring dad's wishes. My mum won't downsize she happy in 3 bed house. We all have a good relationship with mum so no issues there. Looks like best option is ask dad if he wants to do will? and explain what happens if not. If no attempt at will then property passes to mum via intestacy and get her to do will immediately. then inheritance at point of mother deceased whenever that may be. This looks like best approach. My mother says "property to children" with her right to stay in as long as she wants" not sure if there is a legal category for this. It may be that it is binary i.e property passes to mum or it is with children. But she may not know if there is a risk for her if its latter. 

The alternative is to not push the issue with him if he really has very little time left then that time is probable not best spent on something that is likely to be stressful for him and your mum. He is probably thinking that doing this is in her best interest whereas in reality it is not. As for going against his wishes this is a marital asset that happens to be in his sole name so it should not override other considerations.

If he dies intestate and you mum still wants to do deed of variation to alter the terms of intestacy that can be done but it would be consider as deliberate deprivation of assets to give away her inheritance if she ever needed care, which hopefully she won’t need. 

elsien

Your mum may not want to downsize /move now. She may never do. But at least if she owns the house she has the choice. Just leaving her a life interest removes that option, 

onomatopoeia99

You need a solicitor to write a will that creates in immediate post death interest trust where you / siblings are the beneficiaries and your mother has a life interest in the property to live there rent free.  If they do wills they will know, this comes up a lot, and can write it so she is able to sell and move if she wishes- your mother should have a mirror will for the event (however unlikely) she dies first.

I've spent the last five months doing probate for my dad and figuring out what his will actually means in the real world which is how I found out about this.

Malthusian

Life interest trusts are typically used when the deceased's spouse is not the other parent of the deceased's children, and they want to give some security to the spouse while still ensuring that the capital passes to the children eventually. 
The first rule of trusts is that a trust is something you set up when you don't trust the beneficiaries. In this case the "trust gap" is because A does not trust their spouse B to leave the property to A's children (B's stepchildren) in their own Will. (And none of this reflects badly on A or B, the family tree is what it is.)
But here the children appear to be the biological children of both A and B (or at least the OP hasn't said otherwise). Why does he want to leave the marital property in this way? Is it just something he's heard about other people doing? 
A life interest trust reduces the security of the spouse in order to increase the security of the children. Having a life interest is better than having nothing at all but it is not as secure as outright ownership. (You may be able to sell and move if you wish but you need to ask your own children - the trustees - for permission first.) 

Mimi_Arc_en_ciel

If your dad doesn't have a will, and his wife agrees, you could do a deed of variation where the inheritance is passed to you and by passes your mum entirely.  You could then have a contract drawn up to say that his wife remains in the property until she passes