..to think it's wrong to ask for an advance on inheritance

[RealSeal]

My brother is asking for "an advance on his inheritance" to help him buy a house. He's in his 50s and has a decent job but is getting divorced having been separated for several years. He admits himself he could have made better financial decisions in the past.

Father is elderly and in a care home, but has no serious illness and may have several more years ahead of him. There are 5 of us. Another sibling has Power of Attorney but consults us, about major decisions. My father does have substantial assets at the moment. They are being spent at a considerable rate on care costs and, of course, we have no idea how long they will be required or whether they may need to increase.

If we don't agree to give him the money my brother will accuse us of ganging up on him, not being sympathetic. I appreciate he’s in a difficult position and not where he expected to be at this time of his life, but we surely all have to be responsible for ourselves and our own decisions? He’s not in a desperate situation, about to be made homeless. He would just like me to buy a house.

One of my other siblings thinks it must’ve taken a lot for him to ask. I’m not so sure. I think he’s got nothing to lose. If he gets the money, great for him. If he doesn’t, he’s no worse off. He’ll blame us for his situation. He doesn’t care about nurturing relationships with us.

As well as being against it in principle I’m also worried that, if it was agreed to, how would we ensure that this “advance” was taken into consideration when my father’s will is eventually executed? It just seems very messy and would prolong the stress of dealing with this.

AIBU to say no?

As others have said, your Dad and his attorney need proper advice from a solicitor, this is going to be complicated and the attorney certainly can’t do this on their own.

Also, seeking legal advice would protect the siblings from accusations of “ganging up” on your brother as the solicitor is likely to advise against doing it due to deprivation of assets, etc. - OR, if there is a way to do it and your Dad wants to make this gift, it’ll all be done correctly, iyswim.

That's what I’d say to your brother-due to the POA and your Dad being in a care home, he’ll need to consult a solicitor… perhaps your brother can pay for this!

Totally dodgy ground. This could be seen as financial abuse of father. I'd tread carefully

It's not within the rights of the sibling with POA to agree to this. Their role is administratively manage your father's finances in his best interests and there is no way this can be argued to be the case irrespective of value of the estate and the amount requested.

If your father has capacity then he technically could agree to it, but as pp's have said he would need to consider:

• deprevation of assets.
• the potential that there may be no inheritance or a lesser inheritance for the other siblings.

Essentially there is a high degree of risk in doing this wrt being fair to all parties and potential family fallouts down the line.

If his estate is very large and he has enough to reasonably cover care costs for the expected duration of his life then it would make sense to gift some money now in the hope he lives beyond the 7 year threshold but I would only suggest that means giving an equal amount to all beneficiaries.

This isn't a case of ganging up against one sibling. It's one sibling putting their interests ahead of that of their father and other siblings and that how you need to frame it.

POA doesn't allow anyone to make this decision. Only your df can do that IF he has capacity.

Your father may need all the money to pay for care - he could quite easily last another ten years. To be honest it sounds like your brother is trying to take advantage, and I'd block him.

His bad decisions and personal life are his problem, not your dad's.

Your DB doesn't have any inheritence now, that will be his 5th share of the estate once your DF has passed. Suppose your DB wants £100, 000 and by the time your Dad passes there's only £20,000 left in the bank, there's no way the rest of you will get that money back.

I think it depends how substantial "substantial assets" is, how old your father is and how much longer he might be likely to live for. Then don't forget the 40% inheritance tax. Then dependent on the amount the brother is asking for, it might be doable, but I think the rest of you would have to agree to this and get him to sign something to say he agrees it's an advance and after your fathers death he agrees his share of the inheritance would be reduced proportionately to take account of this.

Oh and if your father died in the next 7 years, there would be IHT due on this amount to your brother.

Thanks you so much for all the replies. They are very helpful.

To clarify a couple of points Dad doesn't have dementia. He does have some capacity but is very elderly and frankly I think he'd likely say no, or refer it to the sibling who is POA. At least I hope he would. I don't think he has the capacity to rewrite his will and I just don't want him to have to be bothered with any of this. He gets confused at times although most of the time is fine. He does however, give everyone regular gifts for birthdays, Xmas. In the past he was asked if he wanted to distribute further assets ( this was some years ago and mainly to reduce inheritance tax) he said no, so we do have evidence of his general approach to such things.

We are in Scotland so the legal system/POA may be slightly different.

Brother isn't going to be homeless. He's getting a settlement from his ex wife ( how much I don't know) and would be able to rent or buy a smaller property than what he wants the money for ( a 3 bed house). He hasn't said how much he wants but it must be a significant amount as he talks about getting " some or all"of his inheritance.

Thanks you for those who advised getting legal advice. If we were to go ahead I certainly would like to see this.

Thanks for the reminder about deprivation of assets, how that might impact care home fees and inheritance tax.

It seems to be oiling down to:

1. Is it right in principle ( my gut is no, unless in dire circumstances)
2. Is it legal
3. If legal, how is it best managed.

@BruFord serious points but thank you, at the end, for making me raise a smile and chuckle aloud 🤣

I’d say yes. Happened within my mum’s sibling group. All siblings knew and I believe it was written into the will.

@RealSeal The best answer from the sibling who has POA is to say that they’ll have to seek legal advice as this isn’t within their remit.

Your brother can’t argue with that.

Don’t do it. If your father has capacity he should be told that this could be viewed as deprivation of assets. If he does not have capacity, family members should not be taking away large sums of money, regardless of who has power of attorney - you’re all entering into dodgy ground there too. He’ll have to rent and wait for any inheritance that may eventually come his way.

What happens if (hypothetically) if your brother gets his inheritance and then your dad lives another 20 years and there is no money left for you and your siblings once care home fees are paid?

Your DB is being completely inappropriate. He should stand on his own two feet not be expecting an elderly vulnerable father who has sensibly privided himself with funds for his own care to bail him out. It sounds so callous. Acting as parent’s power of attorney means having to always act in their beatninterests and this clearly is not in your father’s best interests.

@StormingNorman You're absolutely right that if a gift is made legally and correctly, it can be done.

The important thing is that the OP’s Dad and his attorney take legal advice (as your family clearly did).

Depending on your father's wealth and what assets he has, it may be worthwhile investigating an immediate needs annuity that would guarantee his care home fees so you could then roughly calculate what would remain of his assets. Your brother would then have a better idea of how much his share may be.

@Yetigain. This is how I feel. I have no expectation of any inheritance and certainly am not making plans on the basis of receiving anything. I feel it's so unfair of him to ask.

I'd say no. An inheritance isn't a right and it's not guaranteed. There are five of you. Your dad could live for many more years.

How would you work out your greedy brother's share? What if you gave him say £100k but that turned out to be more than the rest of you got? Would your GB give back a portion? I bet he wouldn't.

There is no guarantee of an inheritance. Your father is in a nursing home and will burn through his money. Its just how it is. You cannot deprive him of assets he may need in the future. No one knows what his needs will be in the future. He should be made aware of that fact. Totally selfish behaviour from your brother.

’an advance’ on zero is zero. There could be zero left if your dad lives some more years. Your DB is U & the sibling with POA shouldn’t need legal advice to say no on the grounds that it’s clearly not in your father’s best interests.

"Sorry brother, not possible, dad's money is being spent on his care , we don't know what, if anything, will be leftover when he passes. He could get in alot of trouble for giving his money away as he's legally required to use it to fund his care. "

All get the same amount or nobody gets it. He is a CF. He should have asked if all could have 50k, instead he asked just for himself, wow.

What an absolute cheek of your brother " yeah I'll just take my cut now thanks" !!!

The sibling with POA has a legally defined duty to act within the best interests of the donor (your father) at all times and all actions are liable to scrutiny by the official ombudsman.

Hide behind legal limitations if it makes it easier to say No but for goodness sake do say No, on all levels this is just wrong.

POA cannot give money away. I'd make sure your father doesn't have the means to pay your brother even if he does have capacity. Pester power can pay off.

The POA is obliged to act in the best interests of your father, which would be to say no to this cheeky request.
As much as it might seem like your fathers assets will be sufficient, I have heard of many cases where care home fees ended up being eye watering amounts, hundreds of thousands - your father needs to keep whatever he has for himself.