Restriction a

housebuyer143

queenieq5 said:

Keep_pedalling said:

That sounds like an immediate post death interest trust, which would be normal in this situation,  your partner only owns 1/2 the house. The other 1/2 is owned by the trust and his children are renaindermen and will inherit her share of the house on his death.

The restriction cannot be removed without winding up the trust which is not something they should agree to. 

I'm not sure I understand that.... I'm guessing it's something that we will discuss with the solicitors 

If they have a trust, you will basically need to dissolve it completely to remove the charge. This potentially risks your children's inheritance because they won't have a legal right to the house. You need their agreement to do anything like this. Speak to a solicitor.

When my dad died we were in the same situation actually, my mum is 63 though so they didn't do the trust thing thinking she would have 40 years left. She found out she was basically beholden to her children to do anything with her own house, she couldn't sell it, remortgage it etc without our permission.
We decided to amend the will and forgo the trust and give my mum her house back, so she owns 100%. 
They did it so the house couldn't be taken for care home fees. But if you think about it, it's my mom's money which they have worked for. Why shouldn't she pay for a nice care home if she wants it. Why is it assumed we should have inheritance?

queenieq5

housebuyer143 said:

queenieq5 said:

Keep_pedalling said:

That sounds like an immediate post death interest trust, which would be normal in this situation,  your partner only owns 1/2 the house. The other 1/2 is owned by the trust and his children are renaindermen and will inherit her share of the house on his death.

The restriction cannot be removed without winding up the trust which is not something they should agree to. 

I'm not sure I understand that.... I'm guessing it's something that we will discuss with the solicitors 

If they have a trust, you will basically need to dissolve it completely to remove the charge. This potentially risks your children's inheritance because they won't have a legal right to the house. You need their agreement to do anything like this. Speak to a solicitor.

When my dad died we were in the same situation actually, my mum is 63 though so they didn't do the trust thing thinking she would have 40 years left. She found out she was basically beholden to her children to do anything with her own house, she couldn't sell it, remortgage it etc without our permission.
We decided to amend the will and forgo the trust and give my mum her house back, so she owns 100%. 
They did it so the house couldn't be taken for care home fees. But if you think about it, it's my mom's money which they have worked for. Why shouldn't she pay for a nice care home if she wants it. Why is it assumed we should have inheritance?

It's an absolute minefield,  and the financial people we had been using have been absolutely useless.
My partner had spoken to the solicitors that dealt with the will etc, and they will apparently get back to him at some point. 
Maybe going elsewhere,  along with the will, will be a better idea
That was a lovely you did for your mum x

poseidon1

Keep_pedalling said:

That sounds like an immediate post death interest trust, which would be normal in this situation,  your partner only owns 1/2 the house. The other 1/2 is owned by the trust and his children are renaindermen and will inherit her share of the house on his death.

The restriction cannot be removed without winding up the trust which is not something they should agree to. 

Agree with @Keep_pedalling. Mother created the trust to ensure that as regards her  half share the children could never be disinherited.

We see too often on this forum, children being deprived of inheritance when surviving spouse enters new relationship and decide financial well being of new partner more important than legacy to kids.

 There is a reason why the remarriage condition was embedded within the will. Ordinarily both spouses wills would have drafted in exactly the same way at the time joint tenancy was severed. Therefore odd that their father is now looking to renege on a trust arrangement that would have been mirrored in his own will had he died first.

In any event only the children have the power to agree to wind up the trust, and if they seek independent legal advice the advice  to them will be to leave as is.

queenieq5

This is not at all the case here. The children would definitely not be deprived of their inheritance. 
My partner wants to get a small mortgage for home improvements,  but can't? 

MWT

queenieq5 said:

This is not at all the case here. The children would definitely not be deprived of their inheritance. 
My partner wants to get a small mortgage for home improvements,  but can't? 

The problem is that any new mortgage would be against the entire property, not just half of it, and if it has to be a mortgage, not just an unsecured loan, then it suggests that it is not really a small amount that is being borrowed...

Everyone needs to take some independent legal advice. 

housebuyer143

queenieq5 said:

This is not at all the case here. The children would definitely not be deprived of their inheritance. 
My partner wants to get a small mortgage for home improvements,  but can't? 

But they inadvertently would be. For you to remortgage it, you need to dissolve the trust and own 100% of the property. Legally that is yours then and your children don't have a right to it at all. 

You could leave it to them in your will, but you could not or it could be taken in care fees - these options all mean their not guaranteed a penny. 
The trust protects that share of the property for the future and should the worst happen and they pass before getting it, then their descendants will inherit their share instead. 

TrickyDicky101

housebuyer143 said:

queenieq5 said:

Keep_pedalling said:

That sounds like an immediate post death interest trust, which would be normal in this situation,  your partner only owns 1/2 the house. The other 1/2 is owned by the trust and his children are renaindermen and will inherit her share of the house on his death.

The restriction cannot be removed without winding up the trust which is not something they should agree to. 

I'm not sure I understand that.... I'm guessing it's something that we will discuss with the solicitors 

If they have a trust, you will basically need to dissolve it completely to remove the charge. This potentially risks your children's inheritance because they won't have a legal right to the house. You need their agreement to do anything like this. Speak to a solicitor.

When my dad died we were in the same situation actually, my mum is 63 though so they didn't do the trust thing thinking she would have 40 years left. She found out she was basically beholden to her children to do anything with her own house, she couldn't sell it, remortgage it etc without our permission.
We decided to amend the will and forgo the trust and give my mum her house back, so she owns 100%. 
They did it so the house couldn't be taken for care home fees. But if you think about it, it's my mom's money which they have worked for. Why shouldn't she pay for a nice care home if she wants it. Why is it assumed we should have inheritance?

This is exactly what I did (only child) when my father passed - the will trust was put in place to 'protect' half the property value from potential future care fees but it would have caused such problems if my mother needed to downsize/relocate that we changed it so that she solely inherited.  What we didn't do (which we should have in hindsight) was remove the From A restriction at the same time.  Fast forward to when she did go into a care home and the property was being sold, dealing with the restriction caused some delay (not insurmountable, but would have been better to deal with it at the time the trust creation was avoided).

DE_612183

MWT said:

queenieq5 said:

This is not at all the case here. The children would definitely not be deprived of their inheritance. 
My partner wants to get a small mortgage for home improvements,  but can't? 

The problem is that any new mortgage would be against the entire property, not just half of it, and if it has to be a mortgage, not just an unsecured loan, then it suggests that it is not really a small amount that is being borrowed...

Everyone needs to take some independent legal advice. 

Could the mortgage be secured against the property with both your partner and the Trust as joint applicants?

poseidon1

housebuyer143 said:

queenieq5 said:

This is not at all the case here. The children would definitely not be deprived of their inheritance. 
My partner wants to get a small mortgage for home improvements,  but can't? 

But they inadvertently would be. For you to remortgage it, you need to dissolve the trust and own 100% of the property. Legally that is yours then and your children don't have a right to it at all. 

You could leave it to them in your will, but you could not or it could be taken in care fees - these options all mean their not guaranteed a penny. 
The trust protects that share of the property for the future and should the worst happen and they pass before getting it, then their descendants will inherit their share instead. 

To be clear for all those who may not have read this thread properly and therefore not appreciated the position of the OP here. 

She is not the mother of the children who are beneficiaries of the trust. Their deceased mother created this trust in her will prior to death.

 Apparently the OP is the widowed father's new partner, but we  can assume she is not a new wife, since remarriage is apparently a trigger to sell the property and release the childrens trust monies.

 We  understand the OP wants to assist widowed father  to  mortgage the property to pay for home improvements, but  to the potential detriment of the children's interest in the trust fund.

The OP is therefore ostensibly advocating on behalf of the widowed father, but seemingly  does not understand that the children's safeguarded trust is there to prevent any action by their father that might affect the children's  ultimate entitlement as expressed by their deceased mother.

This has been a somewhat one-sided thread with not much consideration for the children's thoughts on the matter. If they were happy to amend the trust to facilitate the mortgage request, this thread would presumably be unnecessary, and the OP would not be spending time, money  and effort on legal advice ( for the father).

Perhaps subsequent posters could bear all this in mind, when making suggestions to circumvent or compromise the children's trust fund. 

MWT

DE_612183 said:

MWT said:

queenieq5 said:

This is not at all the case here. The children would definitely not be deprived of their inheritance. 
My partner wants to get a small mortgage for home improvements,  but can't? 

The problem is that any new mortgage would be against the entire property, not just half of it, and if it has to be a mortgage, not just an unsecured loan, then it suggests that it is not really a small amount that is being borrowed...

Everyone needs to take some independent legal advice. 

Could the mortgage be secured against the property with both your partner and the Trust as joint applicants?

I appreciate that this was aimed at the OP not me, but no, the Trust exists to protect and preserve the part of the property owned by the deceased mother, if that purpose was no longer needed then the beneficiaries could agree to end the trust, and thus permit the mortgage, but to the best of my knowledge the Trust could not remain and still permit the mortgage to proceed.

As mentioned above, we need to keep in mind that the interests of the OP and the beneficiaries of the Trust are not aligned.