Potential disagreement over inherited property

mapleleaf75 · 21 October 2019 at 11:28PM

My mother recently passed away. She owns her own home outright and was the only name on the title deeds. We searched for a will and couldn’t find one so I instructed a solicitor to start the procedure for obtaining Letters of Administration (Scotland) with myself as the executor of her estate. He stated as there was no will, my brother and I will inherit an equal share of the estate.

I want to sell the house but my brother doesn’t seem as keen and the reason is my mother’s partner is still in the house. They weren’t married and had been together for a few years. My brother reckons my mum wouldn’t want to see him homeless and neither would I to be honest but I’ve got enough responsibilities of my own with my own house and family to look after without worrying about another property.

I’m also concerned that we’d effectively become landlords and would have to follow the same laws as they do with regards safety, upkeep of the property, etc. Then there’s potential tax issues, the upkeep of the property draining the liquid funds my mum has.

I’m pretty sure my mums partner is registered disabled so if he approached the council, he would be eligible for some sort of housing. He probably shouldn’t even be in the property on his own.

I’ve not had a proper discussion with my brother about it yet as I’m waiting on the court process to complete first of all. But I’m trying to arm myself with all the reasons why selling is the best option.

Tom99 · 22 October 2019 at 2:16AM

A delicate situation, at some point in the not to distant future you are going to have a discussion with your mother's partner.
It really depends on what you think your mother's wishes might have been if she had the choice and how closely you would want to comply with that but any open-ended arrangement would leave you with a lot of expense with no idea when you may be able to access your inheritance.
Maybe an arrangement to let him stay for say 6mths.
You could in the meantime make some discrete enquiries about the social housing situation if he is made homeless, presumably whilst that might seem an insensitive way to go about it that might make housing more readily available.
Have you any idea of his capital resources or income?

getmore4less · 22 October 2019 at 8:44AM

One option would be a DOV to give the partner an interest in possession
(Liferent Trusts in scotland)

This could be time limited and you would want to be sure that maintenance was covered for the period of occupation.

Avoids the becoming landlords and potential CGT of just letting them live there.

mapleleaf75 · 22 October 2019 at 8:44AM

I’m not sure what if any assets he has but he’s living primarily on benefits and I believe is registered disabled due to diabetes.

xylophone · 22 October 2019 at 4:39PM

I’m not sure what if any assets he has but he’s living primarily on benefits and I believe is registered disabled due to diabetes.

You might have a conversation with him in due course explaining that you and your brother are considering the sale of the property and suggesting to him that he makes enquiries of the local council concerning sheltered housing?

Malthusian · 23 October 2019 at 10:18AM

As a cohabitant he has the right to make a claim on the estate. So it may be a good idea to make a deal with him, rather than have the expense of going to court. You will need professional legal advice.

He has six months from the date of death to make a claim so one option is to let sleeping dogs lie until his time is up, albeit you will need to comply with your responsibilities as landlords during that time.

Your brother has the right to force a sale, and your mother's partner won't be homeless, so I would suggest you don't take the partner's side against your brother. Better to have acrimony between the two of you and your mother's partner than acrimony between all three of you.

mapleleaf75 · 23 October 2019 at 11:22AM

Malthusian wrote: »

As a cohabitant he has the right to make a claim on the estate. So it may be a good idea to make a deal with him, rather than have the expense of going to court. You will need professional legal advice.

He has six months from the date of death to make a claim so one option is to let sleeping dogs lie until his time is up, albeit you will need to comply with your responsibilities as landlords during that time.

Your brother has the right to force a sale, and your mother's partner won't be homeless, so I would suggest you don't take the partner's side against your brother. Better to have acrimony between the two of you and your mother's partner than acrimony between all three of you.

I was under the impression it was only the moveable estate he could make a claim on (but reading your link, that's not the case), and for some reason my solicitor said for 12 months from death which I thought strange as I also read it was for 6 months.

Id be annoyed if the court gave him the house that my mother bought with proceeds from inheritance from her fathers estate, and then when he passed it then becomes his families inheritance!

My brother did suggest he wasn't in any rush to sell so if anything, I'll be on my own here as the "bad guy" wanting to kick someone out of the house.

Malthusian · 23 October 2019 at 11:39AM

mapleleaf75 wrote: »

I was under the impression it was only the moveable estate he could make a claim on (but reading your link, that's not the case)

You're thinking of a deceased's children.

and for some reason my solicitor said for 12 months from death which I thought strange as I also read it was for 6 months.

It is very possible that the solicitor is right and I have overlooked something; they are a paid expert, and I knew nothing about the ability of cohabitants to make a claim on estates in Scotland until I Googled it a few hours ago. But I would ask them why it's 12 months and not six.

Id be annoyed if the court gave him the house that my mother bought with proceeds from inheritance from her fathers estate, and then when he passed it then becomes his families inheritance!

Might not happen. If he made a claim a court may award him part of the estate for his maintenance, or the right to stay in the house for a certain period, or the rest of his life (with the house to revert to you and your brother afterwards). I have no idea what the Scottish courts customarily do in this situation; your solicitor should.

unholyangel · 23 October 2019 at 10:40PM

Malthusian wrote: »

Might not happen. If he made a claim a court may award him part of the estate for his maintenance, or the right to stay in the house for a certain period, or the rest of his life (with the house to revert to you and your brother afterwards). I have no idea what the Scottish courts customarily do in this situation; your solicitor should.

Solicitor won't be able to tell you that - even the courts can't! Its received much criticism for lack of guidance/clarity and is currently undergoing consultation.

I believe the law commission has taken the view it should be a period of more than 5 years cohabitation to be eligible if they don't have children together along with some musings on what their relationship was like - ie did they treat them as a spouse, financially support them in life etc.

Its not an automatic right to inherit. Just the right to petition the court as a cohabiting dependent basically.

OP, have you both truly considered all eventualities? Including him meeting someone else and living there with her? Or whether he can afford to run the house, keep it in good repair etc on benefits? Have you also considered making a cash gift to him? Could be a good resolution for all involved. You don't have to potentially wait several decades for your inheritance, he has some money to rent/furnish a new place more suitable for him.

Also, how long is a few years? I'd be less inclined towards a partner of 2 years than i would one of 10.

mapleleaf75 · 23 October 2019 at 11:35PM

I’m not 100% sure how long they were together. Possibly around 8 years. They didn’t have joint bank accounts. Some things he paid for, others my mum.

My mum was receiving carers allowance for him.

I’m not too fussy about the furniture in my mums house, I don’t think my brother is either, so he may be able to take that to any new place. My mum just recently paid to get a new kitchen fitted.

Fire_Fox · 25 October 2019 at 4:39AM

mapleleaf75 wrote: »

I’m not too fussy about the furniture in my mums house, I don’t think my brother is either, so he may be able to take that to any new place. My mum just recently paid to get a new kitchen fitted.

Not much of a gift, unless there are a number of antique or collectable vintage pieces? Or items well suited to someone with his disability/ mobility?

Your mother's partner may well have to pay to have any furniture moved professionally. Similarly the estate may well have to pay for a property clearance if he cannot take it and you don't want it anyway.

Speak to her partner. He is probably grieving, maybe lonely. You might say you are concerned for his health and wellbeing living alone. Ask him what his plans are, and if you can help with that (as you and your brother know your mother would wish).

Given her partner's care needs and health problems, he may want to be urgently rehoused by the council/ housing association. He may not know how to go about that.. Would your brother be willing to help him deal with getting sheltered housing?

Her partner may need written evidence (eg. formal letter from you as estate Administrator) that he cannot live at your mother's property indefinitely, that the property is to be sold.

It would be awful to do or say nothing, and have him rushed to hospital or suchlike.

Potential disagreement over inherited property

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