AIBU Family will

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I helped my father long ago, with paying his mortgage off from a car accident insurance payment and paid his mortgage off.

we have agreed in will/declaration of trust he will once he died before will is sorted out, i will get my 40k back then rest of the assets to be split 50/50 which he wished to do before i mentioned it.

Am i being an arse thinking this is what should happen, if this was my sibling he would want he money back before everything was split so why shouldnt i? im trying to be more forward and be more me rather than worrying feeling guilty about everyones else needs. this is hard but im doing it slowly.

you gave him £40k. He owes you £40k. It is rank basic fairness that he give you back the £40k either while alive or as the first thing out of his estate. The rest he can do what he wants with - if its split then fine.

Stop worrying about it. Try and be rational. what could possibly be unreasonable about it?

I think you are trying to say you made a loan to your father of £40k. That is easily dealt with - get him to sign a loan agreement with effective date of when the money was loaned and say it is payable on his death. It is very common indeed for there to be loans including family loans at death never mind equity release, money owed to HMRC and mortgages. All those have to be paid before anyone gets a penny from the estate.

Is there a legal contract covering the 40k you lent- or a charge on the house?

I paid the mortgage off as surprise - in sneakily way asked him how much he owes to see if I could help out and paid it off - in a sense it was a gift - there no contract of any sort!

It makes a massive difference if this was a gift or a loan.

If it was a gift then you shouldn't be expecting any of the capital back. If someone gave you an expensive present and they then died would you expect their partner/children to give you the gift you gave to the deceased back?

If it was a loan, and all parties concerned knew it was a loan then yes the equitable thing would be for you to have the £40k from the estate before it is split.

But why should my brother get half the cash???

I am afraid it might have been betetr if you had seen a solicitor before paying the £40k. You are now saying it was a gift so there we are. You chose to make an out right gift.

The will does not say you get £40k more than your brother so it is going to be very hard indeed to over turn the will on that basis.

I think because you payed off the mortgage as a 'surprise' your father probably views it as a gift, and therefore he wouldn't expect to have to give it to you as a lump sum aside from the rest of his estate. I think it would be very cheeky to ask for it back as a separate part of your inheritance over and above the 50/50 split with your brother. You should never ever give anyone money you are going to want back without a legal agreement in place, especially when you are talking about a 5 figure sum.

If there is evidence of where the money came from ie you you probably have a good case for getting that from the estate before it is divided up - unless you have told all and sundry it was a gift rather than a agreement of some sort.

If it's a gift then of course you're not entitled to get it back. You chose to pay it, without your dad's knowledge so he doesn't owe you anything. When you paid it, as a surprise, did you expect to get it back?

I think it's a bit naff to expect him to pay you back for a gift, but if I were your sibling I would understand.

If it's a gift, you can't demand it back even after he dies.

If it was a loan to be repaid after he dies you need legal advice and get a legal contract drawn up.

Bear in mind that care costs may well eat up the estate including "your" 40k anyway.