question about a will

[RafaprefersHobnobs]

MIL has recently amended her will to take into account all of her grandchildren. She has forwarded us a letter from her solicitor regarding this presumably for DH's information.
DH has one brother who lives at home with his parents, he does not work (his choice ) and has not done for several years, DH's parents support him (their choice).
The information regarding the will states that on the death of both of DH's parents that the house cannot be sold for 12 months , presumably to allow his brother to make arrangements. However the next clause in the letter states that if after 12 months DH's brother does not wish for the house to be sold that there are arrangements in place that mean he will not have to do so. Does this in effect mean that the brother will be able to live in the house indeffinately and that in effect he is inheriting the house on the death of his parents? If the house is sold MIL has stipulated that the proceeds be split proportionately between DH , his brother and the grandchildren, but is this academic if she has arranged it in a way that allows DBIL to live in the house for as long as he choses?
Hope that makes sense.

[ajandjjmum]

Your DH needs to speak to his DM and tell her that whatever she has decided is fine by him, but is she aware that this is what could happen? If she is and it's her choice, there's nothing that can be done afaik.

[RafaprefersHobnobs]

HereIGo DH will speak to them but he is really worry we sound grabby, we aren't at all, in some ways I wish they'd leave the whole lot to the dogs home .

[thereinmadnesslies]

I think when writing a will you are supposed to take into account the needs of any dependents, even if they are adults. So if your BIL is used to living with his parents and having them support him financially, they need to consider how he will be supported after their deaths. Otherwise the will could be contested by the dependent which is potentially messy and expensive.

[emsyj]

If MIL & FIL support your DH's brother financially and he is dependent on them, they may have drafted their wills such that he is able to continue living in the house after receiving advice on potential claims on their estates if he is not provided for.

I am far from an expert on Inheritance Act claims (never done contentious probate work really - at least, not this type of contentious work) but this might be an explanation for why they've made this arrangement.

Total guess, but seems likely that the brother won't get the house outright, just a right to live there and then his share of the proceeds of sale will come to him (and your DH's and the grandchildren's shares) when it is eventually sold (either because he chooses to allow the sale or dies) - that's a guess though, as others have said why not just ask MIL and tell her upfront that whatever they choose to do with their money is entirely their business, but you want to check that they fully understand what they've agreed to. If their solicitor is half decent (s)he should have explained this very very thoroughly.

[RafaprefersHobnobs]

With the will written in this way who will become the "owner" of the home on PIL's death? Will it be BIL, DH neither or both while BIL still lives there?
By the way BIL is capable of supporting himself he just chooses not to and PIL are happy to support.

[emsyj]

The trustees named in the will would be the legal owners - often the executors, but not always.

I don't think it is relevant whether BIL 'could' support himself - if in fact he is supported by the parents.

[mumblechum1]

I agree with emsyj. It's possible that they've given the brother a right to reside for the 12 months followed perhaps by a direction that the house is sold and he receives more than half of the net proceeds, in recognition of his financial dependence.

I'm a will writer ( I have a paid for advert over on Classified/Small Business), and I think if I were writing their wills in the circumstances I'd be advising them to give him a lump sum to avoid any Inheritance Act Claim but then for the balance of the estate to be split equally. They should probably also put in a declaration explaining why they're doing that to avoid your dh contesting the will.

The trustees of the Right to Reside/Life Interest Trust would normally be the brother, as he's the beneficiary and it would be odd if he didn't have some measure of control, but they really ought to have two other Trustees, probably your DH and ideally someone independant.

Is there any reason for the brother being financially dependant - is he still at Uni?

[RafaprefersHobnobs]

Thanks for all the replies. It really is useful as DH and I have zero legal expertise and really want to fully understand how this will all work out.
DBIL does not work because he doesn't want to (sorry if that sounds judgey ) he walked out of a decent job several years ago and has refused to seek work ever since. PIL support him and that is entirely up to them obviously .
DH (and I) would never contest a will as it is obviously the wishes of the individual concerned, but we both feel a little that MIL would really like to leave the house entirely to BIL and sees this as a way of doing it almost by the back door IYSWIM . DH is fairly pragmatic about years of favouritism shown by his parents towards his brother but I think would almost prefer if PIL just gave his brother the house rather than what might end up being a legal and logistical limbo going on for years in the future.

[corygal]

Ouch - I sympathise.

On the downside, PIL have the right to do what they feel like, regardless of fairness, decency, etc. The trouble is some people do; the real trouble is the law supports them even after they've died.

On the upside, BIL is not likely to outlive your DCs, who will effectively inherit the house. If BIL doesn't sell it first.

For now, though, it sounds as if PIL may well have left BIL the lot, unless they have buckets of valuable assets elsewhere that you are getting. So I would ask them if that's what they want and if they understand what they've done.

It prob won't be worth contesting that sort of will, incidentally. But issues you should raise now, apart from the obvious, include eldercare - who will look after them - and maintaining good relations with BIL in the future. if your kids are of an age, too, I would recommend that PIL speak to them directly about their plans; PIL may wince at this, but it's important to explain to children what their future holds.

[RafaprefersHobnobs]

Thanks for your replies. DH was wondering as well, whilst his brother lives in the house and the trustees/executors "own" the house (for however long that period of time is , who would be liable for any costs e.g bills, repairs etc to the house? WOuld it be his brother or would we also be liable ?

[mumblechum1]

If it's life interest or right to reside trust, the trust will spell out who pays for what. I normally state that the beneficiary pays for the outgoings, council tax, insurance etc so long as they can reasonably afford to do so.

[RafaprefersHobnobs]

That's what we both thought mumble, thanks. The problem is DBIL has no income and I fear that DH and I would rapidly end up liable for a lot of expense. Forgive me for sounding negative, I generally try and think the best of people but DBIL has something of a track record for getting everyone else to solve his problems.
Thanks again.

[RandomMess]

I think you now have a bit more information for your DH to speak to MIL and ask how exactly it works as you don't want to end up liable for maintenance on a home for an unforeseeable amount of time?

[mumblechum1]

Tbh I would be very surprised if the will writer who has written the will hasn't discussed this in great detail.

The first thing I ask the client when they decide they want to go down the Life Interest route is who is going to pay the outgoings, how they're going to pay them and what happens if they don't.

You may be worrying about nothing if the lawyer who has written the will has done their job properly.

[RafaprefersHobnobs]

Thanks mumblechum