Elderly relative ill and not sure what her son's situation might be

reheat

Hi,

Trying to help some relatives.

Mother and son have lived in the same house for many years. House is owned by them 50/50, fully paid up, no mortgage.

Although they made a will a long time back, it never got signed because waiting until moved house ... but never did. So no will.

Mother is 90 and health deteriorated considerably recently. Carers coming in 4 times a day. 

There is a worry that if the mother dies, her half of the house would get split 3 ways (3 eligible to inherit). One share to son, another to my wife, and 3rd to another relative. Our worry is if the latter relative insisted on their share being paid, meaning the son would have to find 1/6 the value of the house, which he could only manage by selling the house and having to move out. Is that what could legally be enforced?

The other consideration is if the mother has to go into a home, and the costs involved - could the son be forced to sell house to cover those costs? Ditto re cost of the carers. Son so exhausted trying to look after his mother he has no idea what the situation is at the moment, nor how to find out. The mother has around £25k in savings, plus some premium bonds that I have no idea of the value of. Son has around £100k.

Any help getting to understand the issues better would be very much appreciated.

Thanks.

poppystar

How old is the son? This is relevant as the latter situation will be different if he is over 60.

Does mother still have capacity to make decision and therefore a Will despite her health issues?

Brie

I suspect the mother has money coming in.  Attendance allowance and state pension at a minimum so that will help with some costs with the council picking up the rest once she gets below about £23k. At that point the will look to the mom's portion of the house. They can't insist it be sold to cover costs but the may well put a lien on it up to the value of what the council pays on her behalf. 

 Potentially, if she lives a long time in a care home there may be nothing to inherit.  At that point they may try to get son to sell but they can't force him out (assuming over 60) as that would make him homeless.  If that is the case he could live out his days there and the council would get their share when the house is finally sold.  

reheat

poppystar said:

How old is the son? This is relevant as the latter situation will be different if he is over 60.

Does mother still have capacity to make decision and therefore a Will despite her health issues?

He is definitely over 60. Nearly 63.

Not sure now re mother's mental capacity, as has deteriorated quite rapidly in recent weeks. Fluctuates.

reheat

Brie said:

I suspect the mother has money coming in.  Attendance allowance and state pension at a minimum so that will help with some costs with the council picking up the rest once she gets below about £23k. At that point the will look to the mom's portion of the house. They can't insist it be sold to cover costs but the may well put a lien on it up to the value of what the council pays on her behalf. 

Potentially, if she lives a long time in a care home there may be nothing to inherit.  At that point they may try to get son to sell but they can't force him out (assuming over 60) as that would make him homeless.  If that is the case he could live out his days there and the council would get their share when the house is finally sold.  

I think we looked at attendance allowance a while back as did not seem entitled, but maybe the changed circumstance have changed that. Will look again.

reheat

Presumably now there would be no point the son being given the other half of the house, which is what the mother had intended but never got around to? I think there is a 7 year rule on that or something?

reheat

Also, what would be the situation if the mother dies and there is still some money of hers to inherit? Could the son then be forced to sell up to pay the 3rd relative their share of the mothers bequest from her half of the house?

thegreenone

Attendance Allowance is not Means Tested.  As her son is there overnight, she should apply for full rate.  Once it's granted,  I don't think it can be taken away.  Apply NOW.  Even if Mum has to go into care, it will still be paid but attributed to care costs.

I don't think the house will be taken into consideration as son owns half, is over 60 and lives there permanently. 

Malthusian

reheat said:

There is a worry that if the mother dies, her half of the house would get split 3 ways (3 eligible to inherit). One share to son, another to my wife, and 3rd to another relative. 

Presumably all three are her children? It's just a rather odd way to express it.

Did she make any previous Will that would remain valid?

Our worry is if the latter relative insisted on their share being paid, meaning the son would have to find 1/6 the value of the house, which he could only manage by selling the house and having to move out. Is that what could legally be enforced?

Yes.

Does the mother have capacity to make a new Will? She could leave the son the other half outright, or leave him a life interest (the right to remain in the property for his lifetime), if she wished.

The other consideration is if the mother has to go into a home, and the costs involved - could the son be forced to sell house to cover those costs? Ditto re cost of the carers. 

No. Currently the value of her half of the home is disregarded in the financial assessment for her domiciliary care, because she is still living there. If she moves out to a care home, it would still be disregarded because a relative over 60 was living there when she went into care.

And his half of the house would of course never come into the assessment because it's not hers - unless she transferred it to him in an attempt to avoid care fees.

Presumably now there would be no point the son being given the other half of the house, which is what the mother had intended but never got around to? I think there is a 7 year rule on that or something?

Well, it would mean that he would own the whole house on her death and her other two children would get nothing other than a share of her savings. Meaning he couldn't be forced to sell after her death. However, I still can't see the point because if she has capacity to do that, she could make a new Will leaving him the whole half the property, achieving the same end but without sacrificing her own financial security. If she can't do one she can't do the other. 

There would be no point doing it in an attempt to avoid care fees - even if it wasn't disregarded anyway due to a relative over 60 living there - under "deliberate deprivation" rules. 

The seven year rule is only relevant if her estate will be liable for Inheritance Tax.

reheat

Malthusian said:

Presumably all three are her children? It's just a rather odd way to express it.

The 3rd relative is a her stepchild.

Did she make any previous Will that would remain valid?
No.

Does the mother have capacity to make a new Will? 
Fluctuates. Until a few weeks ago definitely yes, but now it changes to and fro daily.

Currently the value of her half of the home is disregarded in the financial assessment for her domiciliary care, because she is still living there. If she moves out to a care home, it would still be disregarded because a relative over 60 was living there when she went into care.
Intriguing. Do you have a link for that at all please?

And his half of the house would of course never come into the assessment because it's not hers - unless she transferred it to him in an attempt to avoid care fees.
Sorry, confused by that. How could the mother transfer to the son what is already his? Typo?

Well, it would mean that he would own the whole house on her death and her other two children would get nothing other than a share of her savings. Meaning he couldn't be forced to sell after her death. However, I still can't see the point because if she has capacity to do that, she could make a new Will leaving him the whole half the property, achieving the same end but without sacrificing her own financial security. If she can't do one she can't do the other.
Food for thought indeed.

There would be no point doing it in an attempt to avoid care fees - even if it wasn't disregarded anyway due to a relative over 60 living there - under "deliberate deprivation" rules. 
I obviously need to gen up a bit more on the implications of the son being over 60 at the time of mother going into a care home.
I clearly need to gen up a bit on the implications of the son being over 60 at the time of mother going into care,

The seven year rule is only relevant if her estate will be liable for Inheritance Tax.
Thanks.

See my interleaved comments.

poppystar

If there is no Will and therefore the estate would be distributed under intestacy then the step child wouldn’t in inherit anything AIUI, only blood children would so the problem you are concerned about would not exist. 

https://www.gov.uk/inherits-someone-dies-without-will/y/england-and-wales/no