Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working solicitor and may be on and offline as I have to attend Court and meet with clients. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return.
You have mentioned that your sister has not made a will, and also that you do not know what her wishes are with regard to her estate. At present with no will her estate would pass under the intestacy rules. This would mean that if she were to predecease her husband, then her husband would inherit. Should her husband pre decease her then you and any other siblings would inherit.
I draft will can't really be drawn up without knowing what your sister would like to do with her estate. A local solicitor could do this for her or a ready made will form can be purchased from most newsagents. It could be important to get advice regarding inheritance tax. The threshold for this is currently £325,000 however it is surprising how quickly the threshold can be reached where a mortgage free property is involved.
I think you need to have a frank and open discussion with your sister as to exactly what she would like to be done with her estate in the event of her death or if she needs to go into residential care. Clearly if she wants to make a will or to grant a power of attorney she would have to have the capacity to do so.
I understand that I will be a very difficult discussion to have but I think you are going to find it very difficult to make any arrangements unless you are sure of what your sister's wishes are.
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Alex, Thank you for your quick response.
Can my sister provide in her will (when she makes it) for her husband to continue residence, rent free, in 'her house'if:-
a) She herself requires external welfare care, but her husband does not. Under such circumstances how does the house value figure in the any associated means test for such care?
b) e.g.Would her husband have to pay a market rent to stay in my sisters house, the proceeds of which going towards state welfare costs?
c) Or, she predeceases him?
In any event is not lasting power of attorney required to wind up the estate in the end or is this the executors job?.
Hello, than you for your patience.
In response to (a) your sister can provide that her husband can remain in the house if she goes into residential care. This would not be in her will as that would not take effect until after she passed away, but she could make it clear that they were her intentions. Her husband is very likely to have matrimonial home rights which would allow him to stay in the property, as it is the marital home. The value of the home is likely to be taken into consideration when deciding if there is a charge to pay for any care. Such charge could possibly be deferred, i.e. not paid until the house came to be sold.
(b) I think it would be unreasonable and inappropriate for any council to expect your brother in law to pay rent to stay in the house.
(c) if your sister pre-deceases you brother in law, she could grant a life interest t him in the house, this would mean that he could stay in the house for as long as he wished. when he passed away or left then the house could be sold.
Generally it is the executors divide the estate between the beneficiaries. An attorney may have he power to sell goods for example to pay for care, but generally dealing with the estate falls to the executors.
If this answers your question please could you take a few moments to rate this answer. if you would like more information please click reply. Alex.
I am on holiday right now but if the chance arises I will answer from my Iphone. Meanwhile thanks for info. so far