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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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my mother in law died leaving her estate to her 2 boys after

Customer Question

my mother in law died leaving her estate to her 2 boys after her husbands death. He is allowed to live off the cash interest of her estate. Dad & solicitor have cashed in her stocks and shares. The solicitor has said the cash interest is not worth setting up the fund to do so can dad have the cash instead? the boys are being sent a form to fill in to allow this. it is less than £10,000. dad is planning to sell the family home next year and it is worth about 3/4 of a millon. mums share should have been left in trust to the her boys for once dad has died. the house is now in dads name only.

If the boys sign this form stating dad can have the cash of mums estates doesnt that mean he gets the cash from the house as well?
Submitted: 3 years ago.
Category: Family Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask if you are aware whether the property in question was owned by your mother in law and father in law as tenants in common or joint tenants please? It should be tenants in common but I am concerned that the property is now in your father in law's sole name. Do you have a copy of the title?

Customer:

I think its was in joint to names

Joshua :

My apologies for the delay in reverting to you.

Joshua :

the first thing to confirm is that the property was held as tenants in common as opposed to joint tenants. If the property was held as joint tenants, then the will trust will fail however on the basis that the will trust was set up by a solicitor, this should not be the case and the position can be quickly confirmed by the solicitor that is presently dealing with the matter. In the unlikely event that the property was held as joint tenants, if the solicitor was responsible for setting up the will trust, this is likely to amount to negligence under which the two boys would have a claim for negligence against the solicitor involved.

Joshua :

assuming the property is held as tenants in common as would be expected, then the property title should be placed into the names of the trustees of the life trust rather than simply held in your mother-in-law's husband's name alone. this is likely something that will be attended to in due course by the solicitor but is dealing with the matter

Joshua :

in terms of the proposal to release the cash, there is no reason this cannot be done if the two boys are content to do so there is no requirement that they agree. alternatively, they can agree to release the cash as a capitalisation the life trust. in other words, they can effectively demand a percentage of the fund as the price for releasing the cash. There is legislation that deals with this:


The latest acturial tables were released in The Intestate Succession (Interest and Capitalisation) (Amendment) Order 2008. You can find the tables here:

Joshua :

http://www.legislation.gov.uk/uksi/2008/3162/pdfs/uksi_20083162_en.pdf

Joshua :

using the tables, it is possible to work out a capitalisation and divide the fund between the boys and your father-in-law. If you would like assistance in calculating the figure, please let me know your father-in-law's present age.

Joshua :

it is very important that boys obtain legal advice in respect of any document they are asked to sign from an independent solicitor because any document they sign could either release just the cash or it could release more than just the cash including the property and therefore it is very important that they fully understand what they are signing before they do so. In addition, as above, there is no requirement for the boys to agree to release the cash and if they do agree, they can demand a percentage of the fund and the above legislation as a price for doing so. I tend to agree with the solicitors commented that it is probably unlikely to be cost-effective to actually run the fund as a life interest fund however that does not mean that be two boys have to give it up altogether and if they do not wish to do so, using the above table to calculate capital division of the fund can be a fair way of disposing of the same

Joshua :

is there anything above I can clarify for you?

Customer:

no thank you

Joshua and other Family Law Specialists are ready to help you
Expert:  Joshua replied 3 years ago.
Best wishes