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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33283
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My father passed away a few weeks ago leaving a will naming

Customer Question

My father passed away a few weeks ago leaving a will naming myself and my brother as executors. I was fostered as a young girl so I don't really know my brother very well, however I do know he has some mental health issues. He currently receives DLA, lives in a council property, and receives housing benefit/council tax benefit etc. He also has a support worker although I am not sure what she does for him other than help him with his finances every couple of weeks. There is a little bit of equity in my fathers house which leaves an estate of about 60,000 to be split between myself and my brother. If he receives a lump sum of 30k he will lose his benefits and possibly his home. Can this be put in trust for him? If I were to buy my fathers house and rent it out leaving his equity in the property, would he still lose his benefits? How would this work in the long run? Would he own a share of the house proportionate to his equity even if the house is owned and managed by me? So if I make improvements to the property and the value increases, would his initial investment increase in line with the value? The other issue is that I have no idea whether he has the mental capacity to enter into any legal agreements.
Submitted: 3 years ago.
Category: Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question
My name is Claire and I shall do my best to help you but I need some further information first.
When did you last meet your brother?
Claire
Customer: replied 3 years ago.

Hi, I have been in touch with him now for 4 weeks, since just before my father passed away.

Expert:  Clare replied 3 years ago.
Hi
Do you think that he can deal with being an executor?
Claire
Customer: replied 3 years ago.

Hi,


 


I personally don't think he can. He is happy for me to deal with everything, so he says. So far I have completed the probate application form and the relevant tax form. As I understand it he will be sent a form to sign to reserve his right to apply for probate at a later date. There is the beginning of the problem though, if there are concerns over his capacity, can he sign that form?

Expert:  Clare replied 3 years ago.
Hi
If he does not have capacity then no he cannot sign the form - but given that he is only reserving power then that is not a major issue and there is no need to delay the application.
So far as the inheritance itself is concerned then yes all his means tested benefits (which does not include DLA will be effected by this capital until it drops to the exempted sum (£8000) for most benefits but
it certainly will not mean him losing his home unless he does not use his money to pay the rent.
Becoming an owner of the house, even jointly, could however cost him the property he currently lives in
Frankly the costs of setting up and administering a trust to avoid the problem is not economic for the relatively small sums involved
You can read more here
http://www.dls.org.uk/advice/factsheet/general/a_guide_to_trusts/A%20Guide%20to%20Trusts.pdf
Do please ask if you need further details
Claire

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