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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33319
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Hello, Please can you help me with the following. My

Customer Question

Hello,
Please can you help me with the following.
My father died in 2011 leaving a will made in 2000 when he and my mother were in good health.
His will relates to funds arising from his half share of my parents house which was held as Tenants in Common and a small ISA held in my father's name. Therefore, but these sums of money were held in my father's name.
My mother has already recieved payment of funds in her own name (half of the house and similar ISA), as well as joint funds from their joint bank account.
His will specifies that his funds should be placed in a discretionary trust following probate. There is also a letter of wishes which explains clearly that the reasons for this were to look after his family. Firstly, my mother is to be a beneficiary of the trust during her lifetime, with any remnant following her death to be divided between my brother and myself.
My mother who suffers from a mental illness, my brother who has experienced prolonged periods of unemployment and I are named as joint executors and joint trustees of the estate.
The solicitor named in the will has ceased to work for us as the level of dispute with my brother was great. He has continued to refuse to understand or entertain that we need a jont solicitor to set up the trust to proceed. We have therefore not been able to manage probate. The funds are held by the solicitor who stood down. Thankfully they will not allow us to access it without clear agreement in spite of attemps by my brother.
My mother is in a care home for approaching 4 years. According to my brother who is her PoA she is approaching the point where her funds will make her eligible for Local Authority asessment.
My brother is now claiming that the funds could be taken by the Local Authority under 'deprivation of assets' to her ownership.
My view on this is that:
1) These funds were in my father's name, so were never assets belonging to my mother.
2) They are subject to my father's will made in 2000 when they were both in good health and care home fees were not a consideration for them.
3) The letter of wishes with my father's will specifies his reasons for placing the funds in a trust which are to specify their use and potential inheritance. Namely, to care for my mother during her life and if there is any remainder on her death to divide it between my brother and me.
4) As co-executors/trustees of the estate it is our obligation in accepting the role to proceed in accordance with the will. Namely, to place the funds into the discretionary trust. My mother could not therefore act to voluntarily deprive herself of assets which in any case are not her own.
Please could you offer me any advice on whether the Local Authority could claim that these funds fell under 'deprivation of assets' by my mother. I note that my brother has considerable potential gain from moving them to my mother's ownership. She has specified that she would write a new will and leave any inheritance solely to my brother. She may have already acted on this.
Also, could any provision of misinformation by my brother to LA be seen as an attempt to defraud the estate.
Thank you for your help in this matter.
Submitted: 2 years ago.
Category: Family Law
Expert:  Nicola-mod replied 2 years ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Nicola
Expert:  Nicola-mod replied 2 years ago.
Hello,

I apologise as we have not yet been able to find a Professional to assist you. Do you wish for me to continue to search for someone to assist you or would you like for us to close your question at this time?

Thank you for your patience,
Nicola
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare and I will do my best to help you.
There has been no deprivation of assets at all.
the process undertaken by your parents so long a go of severing the Joint tenancy and holding the property as Tenants in Common and dividing joint savings is perfectly legal and cannot be attacked by Social services.
As to your second point that is unlikely - all your brother would have to say is that he misunderstood the situation so no action would be taken against him.
You may wish to consider applying to the court to have your mother and brother replaced as Executors so that the estate can be wound up.
Please ask if you need further details
Clare
Customer: replied 2 years ago.

Thank you for your brilliant answer.


 


I have considered applying to court to have my brother and mother removed. However, I have already spent about £10,000 on legal costs to little avail, just batting back letters. Do you have advice on what removal would entail and any thoughts on how much this would be likely to cost.


 


It would mean removal as executors, but then they would still be trustees of the estate. I understand removal of trustees requires high court and likely to be very expensive.


 


Thank you so much if you are able to advise.

Expert:  Clare replied 2 years ago.
Hi
Has the extent of the assets been identified.
What is required to complete the application for Probate?
Clare

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