Need advice on legal options after a difficult situation

[Mancity08]

I really need some helpful information from anyone who’s been in this situation

so dp dad passed 9 yrs ago he shared with his wife.
In his dads will it stated that his dads share if tge House be shared between 3 siblings
Her share to be shared between her 2 sons
Also his dads savings back then was 37k which he stated the wife can draw if any interest accumulated
also if his wife decided to sell or go into care home the house must be sold and distributed between the siblings

we have just found out that the SM has gone into nursing home 12 mths ago and one of her sons was looking after her at home prior to this

Should it be allowed for him to stay alone in the house for 12 mths rent free without 2 of the benefliciaries knowing about this.

His sister who is the other executive for his dads side of the will knew about this but when challenged said she doesn’t have any say in SM care decisions

The two brothers are saying they think she may come back and be looked after in her own house ( this seems very unlikely to me as she been in nursing home 12 mths now )
As SM is still alive (albeit being in nursing home)
who has a say in when the home is to be sold ?
I think her sons are taking the piss , ones living there rent free whilst making the excuse she may come back after 12 mths !!

If a person still owns a property how long can you be allowed to stay in a nursing home before funding is needed from house sale ?

Dp doesn’t know how much he can say in this matter or what to do about it

Presumably the 37k + interest and her pension income is funding care so far. Does anyone have POA for sm? How was the property owned when both alive, as tenants in common or joint tenants?

Did the father's will say that his wife had a right to reside there until her death or until some other event?
Assuming that you are all in the UK, did the father totally own the house or were they joint tenants or tenants in common?

I am sorry but there seem to be gaps in the story here.

sorry for confusion

They bought the house 50/50
the 37k is for dad children (3 siblings) which was his savings. the INTEREST on that said money is for stepmother to draw from at any time
SM will have state pension & I presume small company pension plus any disabled benefits because of dementia
POA for SM is her son who lives in the home now as he looked after her until she went into nursing home 12 mths ago and has resided there since she has been in nursing home

DP dad said his wife could stay in their home until - she sells or death , then his half of the property + 37k to be given to his 3 children
Her half of property plus whatever she has left to her 2 sons

main question are

1.Is son allowed to stay rent free in the property
whilst she is in nursing home with dementia
2.Also should all beneficiaries been notified of her going into care home & son living in the house
3.If she’s been in care home 12 mths if care home knows she has assets (house) how long do they give you before they want repaying for the deferred care fees as it’s been 12 mths already

Is going to a care home one of the conditions or not?

You mention it in yiyr first post but not second. She isn't dead yet nor has sold, so no division of asset at this point. It therefore comes down to anything stated relating to her going to a care home.

I’m not sure you know enough about it tbh. You are assuming that she is not able to pay care home fees herself, it is possible she can and qualifies for some financial help due to her mental capacity. The issue is whether she will ever return to live there herself and if her son lives there genuinely as her carer and with her permission. If not you may need to look into the legal way to get him to leave. What is your urgency to release funds from the property, is it being maintained and bills paid? Will it increase in value(and possibly be subject to CGT)?

dp has waited 9 yrs already since his dads passing to see any of his inheritance and I can only presume it’s because he’s coming up to 72 yrs old himself that he may not have chance to see any of it.

Im only going of what he has told me.
ill tell him to look at solicitors letter which they all got after his dad passing 9 years ago

He needs to see the solicitors letter and his late dads will, the house has not been sold and she is still alive.

It's quite a complicated situation. In theory renting out the house should be generating some income for her (to pay towards the fees) so no one should be living there rent free.

Just on the point of the care home fees, it is Social Services who will be dealing with the deferred payments. The care home itself doesn't care who pays, as long as someone does.

Social Services must have done a financial assessment so will be aware of the situation and will presumably at some point pressure the sale of the house to retrieve the fees.

If the will gives her the right to the house that means its in a will trust, as such it is hers for there life, and therefore her son can live there rent free if she wishes (assuming the will makes no provisions against). For insurance purposes someone may need to be there anyway, so its no bad thing really.

You are the remaindermen beneficiaries and don't get anything until the trust ends, caused either by her death or sale of the house. For financial purposes the entire value of the house will be assigned to her estate for IHT purposes.

In terms of care, the usual situation is for a DPA (deferred payment agreement) to be placed on the property, it then has to be sold post death (action to sell must be taken within 90 days) and the lien re-payed.

However - a DPA on a property where there are multiple owners needs agreement of all parties, your dads share should be held by a trust registered with the TRA, so the trustees will need to have approved any such lien and ensured it is understood it is limited to her % of the house.

This you need to check, because I know of situations where something was done wrong and the whole house is in the DPA.

Note also, for a will trust to work, the property must have been as tenants in common at the passing of her husband, if it was Joni tenants that supersedes the trust and the entirety passes to the surviving joint Tennant. I'm assuming your future share is in a trust registered with the TRA, if not you need to get a solicitor to look at that.

Action points would be:

Forget about the brother living there

Check that a trust is formally active

Check on any DPA or lien

This is what gives me cause for concern, if the house is set up as it should be the deeds should show the wife as co-owner with the dusters of the deceased estate. As such SS cannot place a DPA on the property unless they have the written agreement of all parties.

My concern would be that something may have been done wrongly, examples of which could be.

The life interest trust defeated by joint Tennant deeds, meaning the house is legally owned by the wife and that section of the will was automatically voided.

The life interest trust exists, but the deeds were never changed to add the trustees

The life interest trust exists but was never registered with the TRS.

Somehow a DPA has been entered into without all parties agreeing.

of course a caveat could be that the trustee may be a solicitor in touch with the wife only. a DPA could have been agreed.

The son staying there is irrelevant, likely the property being vacant would void insurances and it would deteriorate, and the trust may preclude renting it out, its a red herring.

@Mancity08 you don't say whether your fil and his wife are/were joint tenants or tenants in common, this is important.

Indeed, its the most important thing, as if they were joint tenants, regardless of what the will said, its all hers.

Why is the son still living in the house Is it his way of trying to take control of the situation. Does the Will state anything about what happens if she needs care. Does she still have capacity (the home will have done an assessment) if not it is unlikely she will return home. You need to see a probate Solicitor first re dad’s Will. It’s quite complicated especially if you are not getting straight information from SM sons.

If she’s lost capacity with dementia, it might not be possible to sell the house without court involvement unless she has POA in place.

But unless the trust comes to an end when she moves out into care for a set period, then while she’s alive it’s her house to do what she wants with, including letting her sons live there rent free.

The exact wording of the Will is what matters here, but it’s also important to remember she has a share of the house too, and she might not want or be able to sell.

yup, this.

The OP would do well to check with the land registry how the house is held - if all has been done correctly it should have a tenants in common restriction which starts "no disposition of..." and the wife should be named alongside the trustees, as co owners.

If that is not the case and the deeds have not been amended then all will hang on whether that tenants in common restriction is present, if it isn't and they were joint tenants then the house will have legally been hers, in its entirety from the moment of her husbands death, regardless of the will, and a DPA may have been taken out.

If that's the case, there is nothing OP can do.

I have experience of this as my father left a convoluted will with a trust, which none of us beneficiaries, including my mum wanted - but the solicitor who drew up the will neglected (as is quite common apparently!!) to amend the title deeds, and fortunately we were able to ignore the will in that respect. Often wills are drawn, but actual ownership is overlooked, and the standard joint Tennant arrangement passes ownership automatically, at the moment of death and usurps the will.

It could be that the trust does legally exist, but the executors have failed to register it or change the deeds - in that case they should do this ASAP to prevent a charge being placed on the whole property. The Trust Registration Service won't fine them, as it is an oft made mistake, as many people don't even know it should be done - but getting these ducks in a row ahead of the council trying to get care home fees back later, not realising that the trust project a large percentage.

I rather suspect something is wrong, but can';t say which aspect, or else the OP's relative who is an executor would know all about it, and although wouldn't have input into care decisions, certainly would have had to sign agreeing to any DPA on the wife's share.

I would be urgently seeking the advice of a good solicitor who specialises in estates and trusts, and take to that meeting a copy of the will and a copy of the land registry title.

great advice

thanks to everyone

Dp has got copy of deeds
its says proprietors - stepmother & 2 trustee’s
then
Proprietorship Register continued
(08.07.2011) RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital court rises to be registered untess thorised yer

so presume it’s been changed over since death of partners father.

found out that stepmother has been in nursing home 18mths as it was too much for her son to look after her .
So he has been living there rent free for 18 mths
partners sister knew of this (executor for dads half) but doesn’t talk to partner
Her son as said he is staying there for at least another year as he gave up his flat to look after his mum and is looking for a job. Social services said it’s law that he can stay there in his mums house

social service must have a deferred payment
on the sale of the house - 18mths now

Is this correct anyone ?

"(08.07.2011) RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital court rises to be registered"

This is the standard wording used on deeds where the house is owned as "tenants in common" ie they each own a separate 50% of the house rather than jointly owning the whole house. This will protect your Dp's father's 50% share of the house.

The next important question is what the will says about when the trust will come to an end. You said:

"...if his wife decided to sell or go into care home the house must be sold and distributed between the siblings"

In this situation, if the executors have not started the process of selling the house by now, then you will probably need to approach a solicitor to deal with this matter and force them to follow the terms of the will.

There is a body called STEP - the Society of Trust and Estate Practitioners - solicitors who are members of STEP are every experienced in dealing with these sorts of issues.

If you google something like "STEP solicitors [name of your town]" then that should give you a list of local solicitors.

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"So he has been living there rent free for 18 mths"

There may be a reason for this. Is he over the age of 60 or disabled?

If he is over 60 or disabled then there is a mandatory disregard of the value of the home when care fees are assessed. In other words the value of her share of the house is ignored so there are no fees to pay (unless she has other assets).

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"Social services said it’s law that he can stay there in his mums house"

I'm not sure why they have said this? Unless you're squatting then a person can live anywhere they like. However, it doesn't mean that he must live there.

If he is over the age of 60 or disabled then he may staying there largely so that his mother doesn't face any care home fees.

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I would strongly suggest that you speak to a solicitor who is experienced in this area.

Social services may well have a deferred payment on her half of the house - the trustees should have been asked to agree to this as a deferred payment agreement on jointly held property can only be made with agreement of both owners.

However I have experienced cases where SS muck up and apply it without getting the other parties consent - this can have the effect of voiding the DPA and leaving SS with no claim at all, but rest assured, the 50% held by the trustees is protected by the tenants in common deeds, which are clearly in order.

As to the son living there, that is entirely up to her, she is the life beneficiary of the will, the house is in effect hers until she dies, and if she is letting a relative live there rent free, that's her call and nothing to do with the trustees or the remaindermen beneficiaries, unless of course a trust clause prohibits it, which would be unusual, so I'd not worry about that until she dies, at that point things change.

It could well be the LA / SS has disregarded the property from care costs, either because a mandatory disregard applies or a discretionary one, the discretion could apply because the son has cared for his DM or because of the trust, some LAs still disregard in those circumstances due to the added complexities of the situation, even if they don't legally have to, so there may not be a DPA.

No effort would be made by ss to force her hand to sell the property until she dies - the law makes sure no one has to sell their home in their lifetime to pay for care unless they want to. The DPA does not become due for repayment until 90 days after her death, and so long as her executors are taking reasonable steps to sell and liquidate the estate they won't pressure them to repay.

So he has been living there rent free for 18 mths
partners sister knew of this (executor for dads half) but doesn’t talk to partner
Her son as said he is staying there for at least another year as he gave up his flat to look after his mum and is looking for a job. Social services said it’s law that he can stay there in his mums house

Social services are correct, please bear in mind that she is the life beneficiary of the trust, its her house for life, the trustees and remaindermen beneficiaries (your DH) only have very limited rights, they can act if say the place is going to wrack and ruin, but the trustees job is limited until she dies, at which point they act to pass the share held in trust to the remaindermen, who become absolutely entitled to their share of the property.

He doesn't have to pay rent whilst his mum is alive, that's just how it is, nothing wrong or underhand is going on.

"...if his wife decided to sell or go into care home the house must be sold and distributed between the siblings"
In this situation, if the executors have not started the process of selling the house by now, then you will probably need to approach a solicitor to deal with this matter and force them to follow the terms of the will.

The problem with this clause is that the trustees don't own the house, they own 50% of it, they would need to get an order for sale from the court, this is a long winded and costly action, takes around 12 months, if not longer. If the life tenant argues that she wants the option to return home, and that her stay in care is not permanent, then no judge would grant the order. In essence it's easier to sit it out and wait for her to die and then there is no question, an order would be granted.

Also worth noting if the trust is ended before she dies CGT won't be re-based and capital gains will be payable, if you leave it until she dies there is no CGT to pay as it resets to zero for trusts such as this only on the death of the life tenant.

"Also worth noting if the trust is ended before she dies CGT won't be re-based and capital gains will be payable"

Just a small point, but this overlooks the 36 month rule for people going into long-term care.

For CGT purposes, the house is treated as the principal private residence for the last 36 months of ownership, regardless of whether the person was occupying the house or not, if they went from the house to long-term care.

So:

"...stepmother has been in nursing home 18mths"

So the trust will still have a further 18 months before any thought of CGT comes into it.

Then, it will only be the amount of time beyond 36 months in the care home that will count when calculating any CGT.

That's a fair point, stand corrected.