House owned outright - told I have to sell it!?

[mattmarkham]

Many years ago my father died and as a result the house he shared with my mum was paid off in full. Eventually my mum remarried but was keen to ensure that her new husband and his family would not benifit from any inheritence (in the event of her death) in relation to the house and that this should come to me and my bother and sister. A will was drawn up which states that my upon mums death the house would belong to the three of us but we would be prevented from moving in or selling it because my step father could remain resident unless he remarried or began cohabiting. My mum unfortunately died and in accordance with the will the house now belongs to the three of us but my step father remains resident. Our relationship with him broke down soon after. Some years later he now has to move into a care home due to blindness. Our solicitor have notified us that if this is the case then the house will have to be sold, the money banked and the interest earned provided to my step father until his death, or alternativley rented out and the proceeds going to him until his death.

Surely this cannot be correct, he has no ownership rights to the house, simply a condition of residence which prevents us from treating it as our own until he marries, cohabits or dies. Surely we don't have to sell our inheritence? can anyone help?

[WelshMam2009]

Ok, I don't know the law but as a lay person my thoughts are that your mother's will made provision for your step father's housing needs until one or more of several conditions arose:

 

a)death b)marriage c) co-habitation.

 

As none of the above has occurred then I'm guessing that legally your step-father still has an interest in the marital home but this is being realised in a different manner.

 

For example, if you did rent the house out and gave the profit to your step father, how would this be any different financially to you than if he were still living there?

Edited December 4, 2009 by WelshMam2009

[Desperate Daniella]

I don't know the answer to this but I'm horrified to think that this could be the case.

 

As more and more people need to go into care homes I'm surprised that the solicitor who drew up the will didn't take this possibility into account. If he should have done then you may have a case against him. You need to know what kind of clauses solicitors today put in wills, because the situation you describe clearly wasn't what your mum would have wanted.

 

I'm sure some expert advice will come along soon.

 

DD

[Desperate Daniella]

I can see Welshmam's point, but care homes are expensive. If you have to rent the house out, would the rent cover the care home costs?

 

I really don't see why you should have to sell it and maybe lose all the equity if he lives for another 20/30 years for example because the whole lot could be swallowed up.

[WelshMam2009]

I can see Welshmam's point, but care homes are expensive. If you have to rent the house out, would the rent cover the care home costs?

 

I really don't see why you should have to sell it and maybe lose all the equity if he lives for another 20/30 years for example because the whole lot could be swallowed up.

 

I think you're earlier post is correct Daniella insofar as I don't believe that this is what Mattmarkham's Mum intended.

 

If there is no significant surplus via rental income then I guess the local authority will have to pick up the tab. If the property is sold then it is only the interest and not the equity that will be affected. However, this will effectively diminish over time which is why rental is probably the best long term option.

 

Also, any maintenance costs, necessary improvement works and statutory inspection costs and fees etc should all be off set against any profit.

 

One other thought, if the step father has been admitted to a nursing home because he needs nursing care then I don't believe that he should necessarily be paying for this. HOWEVER, whilst he is still alive, then I'm not sure that you can sell the property and simply divvy it up between the 3 siblings.

 

Just to say, in fairness, it is not the elderly gentleman who is benefiting here but the State!!

[mattmarkham]

Thanks everone who has replied so far, all very useful.

My thoughts are that he would have been means tested, and in making their determination about who much he has in terms of assets the house should not have even been considered because his rights over the property are limited to conditional occupation rather than any form of ownership

[mattmarkham]

Thanks Welshmam2009. I agree with you that because his health requires him to go into a care home he sohould not necessarily pay - I am not however entirely sure of the situation in this respect and the letter form his solicitor doesn't make that clear. If this is the case I can see no reason to sell the property, but also accept that we cannot, despite being on the deeds, do anything with the property whislt under the terms of the will we are technically displaced occupiers until he dies.

[mandyjayne]

Hi all (hi welshmam!)

 

my elderly mother has just spent 9 months in hospital, and 2 weeks ago due to no longer being able to live alone, she now needs 24 hour nursing care, has been moved into a nursing home.

She owns her own property outright, and she has been told by by our local council she does not qualify for fully funded care, so we have been told to sell the property to pay for her care, are you ready for the cost......its £600 PER WEEK.

She was in St Thomas's hospital in London for these nine months and looked after by 5 different consultants, who, when she was discharged recommended she qualify for fully funded care, because she is so ill. Our council says she does not qualify, they only want our money, thats why!

 

Your stepfather is not a homeowner, and the house does not belong to him, so he should be funded by your local council, DO NOT take anything for granted what the local authourity say, or the solicitors, as we have discovered many of the sols do not know the law with regard to this situation.

We have now found a solicitor who works in this field and she is acting on our behalf fighting the council's decision, and it looks positive.

 

The house belongs to you and your siblings, look into this much more, do not just take what these people are saying at face value!

 

good luck

 

MJ:)

[jansus]

I thought there were cases recently where it was proved in many cases there should not be sale of the property where care is necessary.I will have a hunt around.

[jansus]

http://www.tenminutewill.co.uk/pdfdocs/Protecting_your_Home_from_the_Local_Council.pdf

[jansus]

Your home, your assets and your care home fees : Directgov - Health and well-being

 

 

interesting suggestion to rent house out to pay fees .

[jansus]

But if you have no spouse or relative, you can prevent a forced sale by the council. For a modest fee to cover, in many cases, an amendment to property title deeds, there is a potential solution, says Mike Warburton, a tax partner at Grant Thornton, in The Times. Most couples buy a home as “joint tenants”, which ensures that on the death of one of them, their share of the property is automatically transferred to the other.

But it is also possible for a couple to own a property as “tenants in common”, giving both parties the freedom to give their share to whomever they like on death. So, if a husband dies and leaves his, say, 50% share of a property to a “discretionary will trust” (that holds his share for the benefit of, for instance, his children), then the value of his wife’s share in the property may be ignored at the point at which she needs care.

That’s because Department of Health rules only give local authorities the right to value the surviving spouse’s “interest in the property… not the property itself” when means testing for care support. That interest, in turn, is deemed to be worthless because the value of the widow’s share of the house can’t be established via a sale until the surviving children and the trust agree to one. This might sound a bit fiddly, but if you want your family property to remain in the family, then it is well worth taking legal advice on.

 

 

 

 

also found on age concern

 

only recently found out that when my mother was in an authority run residential home from

2002 until 2004 (self funding) she was eventually assessed as needing 24hr nursing care

and moved to a private Nursing Home by SS. She died earlier this year and it soon became apparent that

there were serious problems with her finances this has resulted in my employing a solicitor to

get some justice for my mother as every penny (and more) has gone. The upshot of all this is

the solicitor has read several documents including a psychologist report and the final joint assessment by

the Local Health Authority (District Nurse) and the Local Authority (Care manager) where it clearing

stated she needed 24hr care, because of physical and mental problems i.e immobile and dementia.

But what we didn't know was that she qualified for 'Continuing Care' that is all her fee's should have been paid for by the NHS.

It's going to be a long battle but my solicitor is trying to claim back at least 4 1/2yrs of funding.

 

So please make sure you get good impartial advice and cover every avenue before you let the

local Authority tell you what you have to do.

Edited December 11, 2009 by jansus

[Mydogsawestie]

This thread might hold some useful info for you too that I had filed http://www.consumeractiongroup.co.uk/forum/benefits-tax-credits-minimum/151137-social-security-nhs-continuing.html

 

mandyjayne sorry to hear about your mums declining health, Matt hope you get things sorted soon.

[jansus]

Original poster - can you let us know if information has been of any use?

[PriorityOne]

Eventually my mum remarried but was keen to ensure that her new husband and his family would not benifit from any inheritence (in the event of her death) in relation to the house and that this should come to me and my bother and sister. A will was drawn up which states that my upon mums death the house would belong to the three of us but we would be prevented from moving in or selling it because my step father could remain resident unless he remarried or began cohabiting.

 

Your step-father did not inherit the house... therefore the house is not his to sell. He was simply given permission to carry on living there.... If the property has been willed to the 3 of you and your step-father is not on the Title Deeds, then there's no case to answer.

 

Personally, I would fight this one... someone's trying it on or haven't got their facts right re. your step-father.