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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34272
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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As joint Executor of my Mothers Will we, my sister & I, appointed

Resolved Question:

As joint Executor of my Mothers Will we, my sister & I, appointed an Administrater to help us with the legalities. We negotiated a lower fixed rate because I was more than capable of carrying out a lot of the mundane tasks such as claiming the Life Insurance, closing bank accounts opening Joint 'Estate' account to pay ongoing bills eg Council Tax House Ins. Elec, security system etc while we cleared and subsequently sold the proprety.
I am currently and was at the time of clearing up my mothers affairs on long term illness claiming DWP Benefits.
DWP are now saying that the 'Assets' and monies in the Joint 'Estate' account count towards my assets which took me well over the £6000 savings limit. I did not declare this to them at the time of her death as the Administrater told me this was not necessary as the Assets were the responsibility of the Administrater & Executors and still the 'Property' of my mothers Estate until it was finalised.
I never saw any of this 'Estate' money in MY personal account and the residual was put into a Trust Fund following a Deed of Variance. Any monies I need/receive from that Trust have to be applied are treated as a repayable loan.
Am I liable the DWP are trying to say, that I was over my savings limit?
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.

Thank you question.

I will do my best to help you but I need some further information first.
I assume that you mean that you instructed a Solicitor or Probate firm to deal with the estate
I assume that you and your sister then agreed a Deed of Variation to try and protect the funds from the DWP - is that correct?
Clare
Customer: replied 2 years ago.

Thank you Clare

Countrywide Tax & Trust Corporation Ltd (Probate Section) acted as Administrator as it got too emotional to deal with alone.

It was put to me at that time that in 1995 when my mother made her Will she would have had no idea that I would be unemployed or a millionaire and that her death would cause me financial problems so a Deed of Variation was suggested.

The Deed of Variation was only implemented 50% share of the Estate on the advice of Countrywide Tax & Trust Corporation Ltd to protect my mothers hard earned monies from anyone else, HMRC, IHT, CGT, DWP, etc. My sister took her 50% share complete.

The Priscilla June Fairbrother Family Trust was set up as Myself and (on my death passed to) my son as beneficiaries. Myself and a Managing Director of the Countrywide Tax & Trust Corporation Ltd are Trustees.

If I need any financial help it's no use me going to a Bank in my circumstances, I apply to the Trustees loan from the Trust, almost the same as asking my mother in the past . I say almost, as it is written into the Trust that any loan from the funds is repaid on my death. (Mum would have and did on many occassions let it pass over, as mothers do).

It was not a very big Estate, just over £166K residual in total. Split, as I mentioned before, 50/50 with my sister.

If you need more information I am always here.

Kind regards

Chris F

Expert:  Clare replied 2 years ago.

I take it the DWP are aware of this Trust?
Clare
Customer: replied 2 years ago.

Clare

Yes, the DWP have taken a copy of all my Documents ie Memorandum of Wishes, Deed of Variation, The Trust & Confirmation of a Loan from the Trust.

Even a copy of the Administrators Report on the Estate.

They have everything.... They even had copies of my personal bank statements including the joint 'Estate' account, direct from the Banks, without my knowledge!

Chris

Expert:  Clare replied 2 years ago.

I am afraid that this is your problem.
The Trust was created solely in an attempt to allow you to avoid the means testing purposes which amounts to deliberate deprivation of assets - a potential fraud on the system
I am afraid that you were badly advised in doing this and I am afraid that the DWP are indeed entitled to say that those assets were indeed available to you
I am sorry - I know that this is not what you wished to hear - and also that you were badly advised - but it is the position that you are in
Please ask if you need further details
Clare
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