Legal, Will and Probate Enquiries

[Yorky55]

hy, not sure if made myself clear, dads SW isnt in hospital, I meant to say I need to find out who the allocated SW is, reference to Hospital SW for discharge into care home. NO one has told me who it is?

[Good Sister]

Hello Yorky, so sorry it's working out this way for you and your family, like Honeybee I'd like to send a virtual hug to you too.

 

In terms of funding, do take a look at the attached:

Where you can be cared for - NHS

WWW.NHS.UK

---

If you are approaching the end of life, you may be offered care in a variety of settings. The palliative care team will organise for you to be cared for...

 

Particularly the part about NHS Continuing Healthcare. I think in many cases, NHS CHC will cover the first weeks of care in any case, though I would always advise checking.

 

Regarding the social worker, as well as chasing the hospital, would it be worth contacting your dad's local council/adult social services to find out more (think you said Durham previously)? They must know how it all works even if they don't know exact details of who your dad's social worker is... they may also be able to advise on the funding situation.

 

My thoughts are with you x

[Yorky55]

Ok as of this moment.

 

Hospital just phoned, dad will be moved to Nursing home very near the  there bungalow village. Either to day or tomorrow. He isnt to good, not responsive, not eating or drinking, refuses, very agitated, confused. obviously skin and bone now.  Another nurse will phone me in an hr time to give me more details and SW name??

 

My understanding is, that NHS continuation of care extending to Nursing home EOL care plan, started whilst in hospital, there should be no cost. I dont think we have that long to go now.

 

when the time comes, and i get a call, I will leave to go up north, arrange funeral etc and sort paperwork, sort Probate, try to get the re[pairs done, look after my brother, I will have 2 months off work [unpaid] longer  if needed. I need to do a load of paperwork, before I send to probate.

 

Im trying to sort out the home bills at moment. not paid since feb 2021.  brother is still getting sorted with his PIP stuff and benefit, I was supposed to get a copy of the assessment, which I still havnt had yet.

[Yorky55]

Note: This thread has been started by Yorky55 and some posts have been moved from another thread. Both threads have been tidied. HB

 

hy, It comes under Durham. 

 

Up date;  dad was fast tracked 2 days ago to Nursing home. He went to nursing home yesterday. Is very frail and poorly.  They say its a case of hrs or so not days or so.

 

OK, Im trying to get things prepared before I leave, as no internet up north. 

 

Question, IHT, I printed off a lengthy IHT form.  IHT205.

 

Now;

1] The total of estate after estimates and actuals takeaway what's owed, will be far less than 100,000.00, probably about 80,000.00.  I assume the cost of funeral, outstanding bills, insurance, will come out of this figure or not.

2] Do I need to send IHT, if so which one? and I use this for Probate? Does the probate costs come from this IHT valuation.

3] The urgent repairs costs, does this come out of valuation

4] Missing items, cant value them?

 now, then will have to pack and go, no internet. Can you offer help as soon as poss please, as just waiting for phone cal

 

lMany thanks for your help

 

I forgot to ask; For the funeral costs and expenses etc, will the banks, let me have some or do I have to wait for probabte?

[honeybee13]

Hi Yorky. Hugs again, I know what you're going through and it's tough. Stay strong.

 

I suggest you start another thread General Legal about the probate aspects.

 

I can tell you that if you take in a death certificate and a copy of the will then the bank should be able to fund the funeral from your Dad's account, in my experience directly paid to the funeral directors.

 

https://www.co-oplegalservices.co.uk/media-centre/articles-sep-dec-2017/can-you-pay-funeral-expenses-out-of-the-estate/

 

HB

[Yorky55]

Hy Update. 

dad, very poorly, but hanging on. Could be next few days, sooner or early next week. 

 

I phoned HRT for advice, not a lot they can say, until dad passes. But If the banks released the money [death cert etc stuff] then more than likely wont need to apply probate.

 

It depends on what the levels are for the banks. If not then, probate.

 

They said its form IHT205 and PA1 for the probate, can down load or they send me. If I do have to probate, i send these forms and all other papers to probate address.

[honeybee13]

Thank you.

 

Are you reassured about the funeral expenses at least?

 

HB

[Yorky55]

yes Honeybee13, But ill need to sort the outstanding bills and urgent bathroom repair, to ensure brother stays in property

[Yorky55]

Hy, can anyone help with the following please;

 

Property as in home. From my understanding of the following.

 

1] The appointment of named people as Executors and Trustees of the will, are the ones to sort out the wishes of the will and to make sure the wishes are done.  so for example; Fred and Flora surviving son and daughter of Gilbert the father who died.  Fred acts as main executor and Trustee as Fred has learning disability issues.

 

2] I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsover..........to my Trustees upon trust to sell call in etc.......

"real estate" means home. So is it my understanding that Gilberts home, now belongs to both Fred and Flora as both are the Trustees, as stated in sec 1. Furthermore if both the trustees wanted to sell the property they can do so.

 

3] MY TRUSTEES shall hold the net proceeds of such sale........

a] Upon trust to pay thereout all my just debts, legacies, funeral .... expenses

b] Upon trust absalutely for my wife..... [she died before the dad]

c] Upon trust absolutely for my daughter Flora

Can I assume that this is referring to a pecking order for surving family members to sort out issues in sec 1 and 2.

 

So, back to the property, Probate has been granted and Fred and Flo are the legal executors of the will. Overall does the property belong legally to both Fred and Flora to live in now. As being the trustees, they hold or have possession of the legal title to it.  Or looking at sec 3, Does the property only belong to Flora? and not Fred.

 

Note;

a] If property belongs to Flora only  and in the future, is placed into care, the council will take the property, sell it, use the money to pay towards care, Flora will have some of it.

b] If property belongs to both Fred and Flora, then legally I dont think the council can take the property then to sell and pay towards the care, as Fred has to live there and I wouldnt think making him homeless is a good thing

 

Anyone have any notes or points of fact for me please. 

 

Many thanks

 

 

 

 

 

[mantis shrimp]

In applying for probate,, the executors swore an oath to deal with Gilbert's estate in accordance with Gilbert's Will.

 

Based on the limited information provided, to apply the Will he property should either be (1) sold and the proceeds given to Flora, or (2) transferred by an 'assent' to Flora.

 

Fred is not mentioned in the parts of the Will you have quoted. Who is Fred? (apart from being an executor of the Will?) 

 

A 'deed of variation' may be possible to give Fred an interest in the property, if Flora wants this. Professional advice recommended.

[Nobby_v]

Executors and trustees - are those appointed to 'execute the wishes' of the deceased. 

The trustees 'hold the assets of the deceased on trust - whilst they distribute the estate to the 

beneficiaries who are the final recipients of x or y. 

 

Clause a applies - pay the bills.

Clause b  doesn't as she is deceased.

Clause c  - it belongs to Flora.

 

There is no gift to Fred, he is only a trustee. 

 

Deed of variation is the only way out, providing all beneficiary's agree and are able to agree (mental capacity).

 

[dx100uk]

three threads merged for full history.

[Yorky55]

Thanks for all the help.

 

1] First port of call, see a solicitor/legal advice. Try for 30 mins free bit.

2] Im glad you mentioned Deed of Variation.  From my research into this, am I right in thinking, that the person who owns the property, can decide they want to share the property with someone who they want to benefit for as though it had been re written in the will in the first place. 

3] Time scale, has to be done within 2 years of date of death. It takes 2 to 4 weeks, as its prety much straight forward , no complications. all in agreement to sign. It does mean between £1000 and £2000 + VAT. [using solicitors]

4]It can be done without legal drafts, but wording, preperation needs to be legally water tight. It can not be undone or changed once it has been done.

 

Has anyone any thoughts on this or any experience or knowledge in, prep and drafting a DOV any help appreciated

 

many thanks

 

[mantis shrimp]

Yes lawyers will charge a fee. Consider the cost/benefit calculation.

 

Not getting it right will cost more to put right.

[Yorky55]

I agree.

 

That is why, exact drafting of DOV taking into account of wording. However both parties are in full agreement, so time would be reduced, no sticky bits to sort.

 

With support, advice and help, it may well be possible to do, without full Legal input.

 

I will look at the forms. templates etc. to see if this is an easy option.

 

Even just getting everything printed, signed sorted , then seeing a solicitor. 

 

Further research, phone  calls to be made.

[Manxman in exile]

@Yorky55 - apologies for might have looked like a rather unkind post in #63 but I wasn't aware of the background to your query.

 

I've now read the combined three(?) threads but am still a bit confused as to the context of your question.

 

Am I to take it that since your last post prior to today that your father has died, and that your father is "Gilbert"?  (If that is the case please accept my condolences).  Are you "Fred" and is "Flora" your brother(?) - who has a learning disability?  (It's confusing understanding who is who because in #61 you say that "Fred" is the main executor but also that "Fred" has learning disabilities, but that "Flora" is sole beneficiary???  I'm afraid your use of names - which may not be real names - when names were not mentioned in your two earlier threads - but your brother was mentioned - have made things very confusing... ????).

 

If your father has died after your mother and his will leaves everything to your brother, with you and your brother as executors, then your brother has been left everything - if I've understood your question correctly.

 

It's always possible for a beneficiary to execute a Deed of Variation which has the effect of changing the bequests in a will, but in this case your brother would be executing the DoV, and the question would be: does he have capacity to understand what he is doing when executing the DoV?  I'd suggest he would need independent* legal advice to ensure that any DoV will be valid - or not possible given his learning disability.

 

Of course I might be completely mistaken because I've misunderstood your situation.  It might help if you could clarify exactly what that situation is?

 

Hope that is of some help.

 

Once again, commiserations for your loss.

 

*Independent from you, that is

Edited February 9, 2022 by Manxman in exile

[mantis shrimp]

To be clear, my posts were based only on a thread starting with post #61. It appears that there may well be other relevant information. It is possible that had I read all that other information I would have said more or something different. 

 

 

[Yorky55]

Hy so sorry indeed.  Made a complete hash of things. You do not need to apologise, @mantis shrimp

 

I was trying to put it into a scenario, that I didnt have to say who we were, in case other people read it  and thought my brother was loaded. 

 

To start,

Dad died, two sons left. Me and brother.

My brother was reliant on my father for 45 years, lived with mum and dad.

Last year I had to leave my family and work, unpaid leave. To come or go up north to look after him.

 

Physically he is ok, he does have understanding, issues like this, i explain very carefully and simply as I can and other more important issues. 

 

We have spoke about the  DOV and the issues surrounding it. He has always said for many years that mum and dad should have left the home to me or us. But I guess they just thought it was somewhere for him to live.  

 

We are both Executors and Trustee, Probate has confirmed this. However as you have said, all it does apart from being a   beneficiary for specific legacies, is made me a kind of manager of everything for brother.  I own everything, but  all belongs to brother.

 

He wants to ensure that when we do move up to care for him at least I have security in home and wont get kicked out.

 

I hope this clarifies the situation now, sorry for my clumsy way of trying to get this across.

 

But I do value your input or anyone else's, has some help is better than no help.  And £1000 to £2000 cost is a lot when it could go to much needed repairs. 

[mantis shrimp]

whatever you own, you own on trust for your brother. Please understand that. 

[Yorky55]

thank you @ mantis shrimp. 

Yes I understand I manage it all, in his best interest as I do as Appointee for DWP.

 

I dont do anything unless we have had a very good talk and explained why something has to be done or if he wants to do something, Ill explain yes you can do that or no I wouldnt advise that.  Eg, when he wanted to give some ornamental objects to people and to charity shop, he said you can sort it. I explained it doesnt belong to me, Its all yours, but Ill help you do what you want to do. Again it was a Yes you can, or no you cant with full explanation.

 

[Manxman in exile]

Well this gets even more complicated as it seems you are replying to a post that has been deleted(!).   

(Not your fault, by the way).

 

Not sure if you have understood the point I was trying to make...

 

At the moment your brother appears to be the sole owner of the property because your dad left it to him.  Any "ownership interest" you have in it is solely as a trustee for him and is what is called a "legal" as opposed to a "beneficial" ownership.  What that means is that any interest you have in the property is held by you solely on behalf of your brother.  You have no meaningful ownership of it at all.  (Apologies if this sounds complicated and makes little sense, but that is where you are - as I understand it).

 

If what you and your brother want is to share the beneficial and legal ownership of the property equally, then normally your brother could execute a DoV to do this.  But you say he has a learning difficulty, so the issue arises as to whether he has sufficient capacity to execute a DoV which will have the effect of taking a share of his property and giving it to you for nothing.  There may be issues around undue influence etc and whether he really understood what was happening.  

 

That's why your brother needs independent legal advice to ensure he understands what is happening.  The fact you say he agrees to give you a share of the house is irrelevant.

 

Hope that helps but its difficult when posts have been deleted - for whatever reason...

[Yorky55]

@mantis shrimp  thank you, your input and advice is very  much appreciated. I really wish we were not in this position, but we are.