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.
May I ask who is appointed as the executor or executors under your sisters will please?
My older sister and brother in law
Thank you. May I ask if the grandchildren are all over the age of 18?
no, 8, 4, 2 years old, my sister is worried the grand children could be taken into care if the house is sold, as her daughter is doing drugs
Thanks. based upon what you say, the persons who will have the power to sell the property will be your older sister and brother-in-law as executors. unless the will points separate trustees, they will also be trustees of property in the estate. The role of the trustee is to hold such property for the benefit of the beneficiaries which from what you say will be your sister's daughter and grandchildren. it is therefore very important that your sister chooses her executors and trustees carefully. She would certainly wish to appoint at least two executors and trustees and it may be sensible not to include her daughter as one of those executors or trustees which is the case from what you say.
If your sister is content that your older sister and brother-in-law would ensure that monies from the estate are held safely for the grandchildren then this may be quite sufficient. If she had any concerns or simply wish to appoint another trustee, for example you, she may consider doing so.
If her daughter has not been appointed as an executor or trustee then her daughter will not be able to sell house. Rather your older sister and brother-in-law at present will be the individuals that can do so and her daughter will be entitled to her share of the proceeds of the sale. If it were important that the house were not sold, but for example your sister wanted one particular individual perhaps to be able to live in the house for a certain period, it would be important to include a right of occupation for that person or persons in her will that she is not concerned if the house is sold then this would not be necessary
Yes this has come up this morning. She has an appointment with her solicitor today to ask to include my younger sister and myself to be "Trustees", which i am not prepared to do. Is there any way to include an extra piece to the existing will to say the house can not be sold until the eldest child reaches 18?
What would be the benefit of retaining the property until the oldest grandchild reaches 18?
Would it strenghten the the point that the children would not end up in "Care"?
Is her daughter living in the house with the grandchildren?
No she has a council house.
It is not clear to me that retention of the house would necessarily impact on the grandchildren not being taken into care. If she gave her daughter a right to live in the property until such time as either the oldest or youngest child reached 18 this would of course give her daughter security of accommodation which can assist in respect of assessing care requirements however it would not assist in any significant manner if her daughter has a drug habit which is deemed to be putting the children at risk. however, that aside, it is heavily possible to give one or more persons a right of occupation in the property until a specified event occurs.
this can be done by including a clause giving one or more persons are right of occupation but care should be taken to provide for when this right terminates - e.g. if daughter did not take up the right. your sister would want to avoid a potential situation where the house is simply left unoccupied and empty of no benefit to anybody
A pleasure. from what you say, your sister will wish to give considerable thought as to who she appoints as has trustees and of course make sure they're willing to act as it will be they who are responsible for keeping either the property or any money generated from the sale safe for the grandchildren when they come of age. She will also wish to consider at what age the grandchildren should inherit-many people consider that 18 is rather young these days but it is your sister's choice. If your sister considers that it would be beneficial to give one or more persons right to occupy the property for a given period of time, as we discussed above that is quite possible by the use of the right of occupation clause in her will
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