Parents will

[baconed]

My parents have lived separately for the last 2 years. Still married but living in different care facilities. My dad made a will when they separated leaving everything to me. When he dies will I actually get everything (money) like his will says or will my mom be entitled to half or everything ? They have 1 joint account but not much in it, my dad has a couple of investments in his name totalling around £45,000. No property involved.

I think you'll get everything that is owned by him, but he can't bequest anything that belongs to your mum and that includes anything they own together.

If your mum didn't contest the will then you would get the property in his name left to you. She could contest it and might well be successful - although in practice with a small estate you would probably need to come to some agreement with her, rather than have it all eaten up by legal fees.

If you are in England or Wales your mother is not automatically entitled to anything. She would have to go to court if she wanted to contest the will. If they are still married when your father dies it is likely she would be awarded a similar settlement to what she would get if your parents divorced.

The law is different in Scotland.

Although if your mum is in a care home she'd be unlikely to want to apply for some of the estate given that it may all go in care home fees.

It could case problems for your DM if it was viewed as not leaving her a fair share of marital assets, this depriving her of capital.

If the separation is a formal judicial separation, with a financial order, then that would be quite different. It's not clear to me whether that has happened, or if it's more a case of them being at present in different homes.

You need to make sure that your DDad took proper advice on deprivation of assets etc. If your DMum applied to vary the will but was not successful, I don't think there can be further action. But if she did not even apply, then she might be taxed/charged as if she had received an appropriate share of marital assets.

If he didn't take advice then, it might be worth getting some now.

It wouldn't cause any problems at all. It would be sensible financial planning.

But if she did not even apply, then she might be taxed/charged as if she had received an appropriate share of marital assets.
This proposition is wholly wrong.

Could you elaborate in why it's wrong?

I've heard of deprivation of assets, and thought one spouse couldn't just dispose of marital assets (whether by gift/will etc) to avoid care home bills.

Or, OP, is it clear that the property is his alone?

Does it include proceeds from sale of FMH? Or do they still own property?

Failing to sue your spouse's estate does not equate to depriving oneself of assets. By any definition of the word "depriving" you have to first acquire an interest in the asset.

An application to vary a will, from a spouse, especially on the basis that the assets the deceased spouse seeks to distribute under the will are not their sole property, isn't the same as suing an estate. She has an interest in marital property already, and that does not change because one spouse dies.

Using the death of one spouse to deprive the other of assets is possible; if something is deemed to be deprivation (eg seeking to bypass spouse's interest in marital property, in order to hand a larger inheritance to DC) then that is a problem and those party to the deprivation may face sanction (such as taxation or charges as if the deprivation had never happened).

It's getting a bit theoretical, because the likelihood of deprivation of assets being relevant to OP depends very much on what her DDad is doing with the will and whether anything that should be a joint asset - such as proceeds from FMH - is being treated as sole property (because of which bank account it current lies) when it should not have been. Unless assets were formally severed on separation, or there had been a clear gift (though survival after the gift might be an issue, and social care providers are very keen on checking that gifts are not deprivation).

Is there any intention, given their separation, to divorce? Or to formalise via a judicial separation? That would sort out the division of former marital assets, and very probably remove all possibility of investigation for deprivation.

An application to vary a will, from a spouse, especially on the basis that the assets the deceased spouse seeks to distribute under the will are not their sole property, isn't the same as suing an estate

The OP's mother cannot vary the will on her own. The OP would have to agree. Without the OP's agreement, the OP's mother would have to sue the estate.

If you mean an application to court to vary the will, that is exactly the same as suing the estate. The OP would make a claim under the Inheritance Act and the executors could fight that claim.

Yes, it could come to that if the variation were not agreed.

but one would hope that if this concerns marital assets (which the £45k may well count as such, irrespective of whose account the money is currently in) OP's lawyer would point out that as the DMum has an existing interest in it, she would win her case, as joint property cannot be left to a third party like that. And if her DMum consented to a scheme which had the effect of giving away her share of existing owned property, then that is deprivation.

OP's DDad needs to review the financial advice he took. Because the DMum is entitled to the property she already owns (her share of marital assets) and possibly some of what he owned on top of that, if she had been his dependant. Though of course there may be other factors - such as if that money was an inheritance to him from his family since their formal separation. If it is savings they built up during the marriage, then I'd expect it to be treated as joint.

OP's lawyer would point out that as the DMum has an existing interest in it, she would win her case, as joint property cannot be left to a third party like that. I would hope that advice would not be given, as it is incorrect.

Can I ask what the basis of your legal knowledge is? You are confidently making wrong assertions. You seem to think that if the wife would have been awarded something were she to get divorced then she has a duty on death of the husband to bring an Inheritance Act claim against the estate if she is a disappointed beneficiary, or else she will be deemed to have deprived herself of assets, and that will lead to the quite remarkable sanction of unspecified taxation or charges. That is absolute nonsense.

You have made wild assumptions, without any evidence, about the source of the father's wealth, claiming they may have come from the sale of a jointly owned property, but even if your assumptions are correct, on their own they would not be enough to constitute deliberate deprivation of capital (I assume that you intend this to refer to the rules by which people are denied state funding to care home fees). The savings may not have come from the sale of a property, or it might have been sold many years before. The property may well have been in the father's/husband's name.

I have pointed out - repeatedly - that what I am saying applies only if the money is a joint marital assets (which happens to be in a single name account).

And that it is a possible deprivation of assets. Because the DDad should not be including in his estate anything that is (potentially) not his. The lump sum might be a joint asset. As I said, if this concerns marital assets...

I have said all along that we don't have full enough info on this thread to be certain whether this potential deprivation is indeed an actual deprivation

And, in my first post, I recommended that the DDad, if he did not get advice in RL at time of drawing up the will should do so now.

None of which anyone appears to be disagreeing with.

At no stage have I said it is definitely one thing of another. And I will happily reiterate that getting legal/financial advice in RL in light of full circumstances (ideally before either death) is the best course.

what I am saying applies only if the money is a joint marital assets (which happens to be in a single name account).

The fact the money is in the father's bank account means it is his money. Whatever the provenance of the funds, it is his money in his account. If he had told the mother that he was holding some of that on trust for her that would be something different, but then again you could literally make that point about any asset held by anyone anywhere in the world.

Hi Collaborate, Can I just try and understand what you are saying. I am definitely not a lawyer btw so my understanding of ‘marital assets’ is very sketchy. However I am very confused with what you are saying as I may have a completely wrong understanding of what is mine and DHs - which would mean a massive re-organisation of finances.
If I were to divorce my DH . (This is purely theoretical as quite fond of the old thing) and he has a whole pile of loot in his bank account through earnings and being v tight and letting me spend on day to day living /bills etc. Let’s say £45k as in the OP. Whilst I have £3k. Would that 45k be his rather than a marital asset - even though he managed to save it because I’ve paid lions share of marital living costs but also because he earns a lot more than me. ?
I always assumed it was ‘ours’ - (one of the benefits of being married rather than just living together. ) and that money would go into a marital pot and be divided pretty much 50/50 if long marriage with no children to house. ? On this basis - how can money amassed during a marriage be bequeathed to a third party without the wife’s possible knowledge /agreement. ?

The phrase "marital asset" is used by divorce lawyers to define those assets that prima facie will be split equally, and usually include all property and assets accrued during the marriage, or subsumed in to the marriage by being merged with other assets or, e.g., the marital home.

Outside of divorce proceedings the phrase is essentially meaningless.