Parents’ wills

[Tupperwarelid]

I don’t know if anyone has any experience of this. Parents have shadow wills so who ever dies first leaves everything to the other. However DF is now in residential care being paid for by the LA. Mum is living in their house and has some savings and pension income she lives off.

She is worried that if she goes first and the house is sold everything will then go on dad’s care home fees.

is she able to rewrite her will do any assets go to me and my siblings instead or would it be classed as deprivation of assets?

Does anyone know?

She is not personally liable for your dad’s fees, so I would think that yes, she could rewrite her will, and that makes sense to me. But I am not a lawyer so could very well be wrong.

I'm thinking she's correct, they won't keep paying care fees while he has money to pay himself, if she died first, the house would need to be sold to fund the care home fees if savings don't cover it.

Yes, she can re write her will at any time. Half of the house is hers and m she can do whatever she wants with it.

If your mother is able to keep her house until she dies (ie. doesn't need to go into a care home herself) and can leave it to you and your siblings in her will, then this seems to me a strange anomaly in the law. Had your father been widowed and then going into a care home - it would have to be sold to pay his care fees.

I don't suppose it is ... but say your parents' house is worth a million pounds. Is it right that the state pays for your DF's care home and your inheritance is protected?

There is so much work to do on levelling up the fairness on care home fees and who pays.

There are 2 ways of jointly owning a home.
One way if your DM dies her share will automatically go to the other co-owner.
The other way she can will her half to whoever.
iirc You can use a solicitor to change how it is owned.

They are joint tenants and tenants in common, but I can never remember which is which.

It wouldn't be deprivation of assets, just sensible planning.

I would suggest that the tenancy is severed so her half can be left in her will. This shouldn't be deprivation of her assets as shes not imminently needing care.

Double check if the LA has put a charge against your father's share of the house. If your Mum dies first, the house will have to be sold and the cost of your father's care repaid from his half. How they own the home, as PP said, is crucial.

We had this situation in reverse - DFIL still at home and DMIL in care paid by LA. We are in Scotland, slightly different legal set up I think. We did what's being proposed here: sever the joint tenancy / ownership and change wills to leave half the property directly to children rather than each other.

Regarding the house, both DFIL and DMIL had to be capable of signing the agreement to sever the tenancy. It was very touch and go: in all honesty MIL had probably lost a lot of capacity. The lawyer went to the home, explained the change as best she could and got MIL to 'sign' the agreement. Same for wills: they were both changed to leave their half of the property directly to DH and his sister. The change was explained, she signed.

Although their wills mirror, there is usually some sort of clause which says 'should x pre-decease me, then my estate goes to...(whoever else)'.

Your Mum is entitled to leave her own property / assets to whoever she chooses.

However if the house is owned as ‘joint tenants’ rather than tenants in common then ownership of the house would automatically pass to your DF. If it is owned as tenants in common she can leave her share to her children.

As your DF would probably now be judged as not having capacity I suspect it would be difficult to change the way they own the house.

Not necessarily.

She needs professional advice. Not mumsnet.

She needs to officially change from joint tenant to tenant in common. My late father did this and left his half of the property to me with a life long interest preserved for my surviving parent. Should the remaining parent need care, only their 50% can be used. That’s the theory anyway and it’s not deprivation of assets. That said, I’d use every last penny to do the best thing by my remaining parent. I wouldn’t be taking my 50% and then only looking at local authority homes, I’d be looking to spend it on them.