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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10494
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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My father died last year and probate has been granted. My mother

Resolved Question:

My father died last year and probate has been granted. My mother survives him and it has been suggested that it may be a good idea to add my name to the deeds of her home. I am her only child (son) and there is no mortgage on the property. Is there an advantage in doing this and if so, what is the best way to do it: Quitclaim, Revocable Trust or Survivorship deed? I am also concerned that this may make me liable for taxes beyond IHT when my mother passes - CGT and/or POAT. Any advice would be gratefully received.
Submitted: 3 years ago.
Category: Law
Expert:  Aston Lawyer replied 3 years ago.

Hi there,

Thanks for your enquiry.

The only potential saving you would be making by having the Deeds transferred into your joint names is if your Mother were ever to go into a Nursing Home. If this ever happened and she owned th eproperty in her sole name, then th ewhole value of the property would be classed as her capital when calculating whether she would benefit from state assistance with the N Home fees.

If she owned only half of the property, then only half the value of the property would be used in th eabove calculation.

However, if the state can show that someone has deliberately given away assets (ie half of th ehouse) to avoid payment of Nursing Home fees, they can still trat that person as owning what they have gifted away, when calculating their eligibility for state assistance.

To get round this problem, your Mother could instruct a local Wills Solicitor to prepare a "Deed of Variation" to your Father's Estate whereby his half share of the property passes to you. This can be done post death but only if th eproperty was of course in their joint names.

If your Mother does proceed with transferring half to you, she would be made aware of the folowing-

1. She loses legal ownership of half of the property, and would be reliant on you agreeing to sell and using the full proceeds if she ever wanted to downsize.

2. If you were to die before her, your half share passes in accordance with your Will, or if you had not made a Will, to your next of kin who would be your Wife, if you were married.

3. If you get divorced/made bankrupt, the property may have to be sold in order to pay a third party!

4. If you own another property, you would be liable for Capital Gains Tax on any profit you make when th edate you acquire your half share and the date the property is eventually sold.

So, there are quite a few factors to consider, and if your Mother is not too concerned over the Nursing home scenario, it would be better to leave things as they are.

I hope this sets out the legal position to you.

Kind Regards

AL

Customer: replied 3 years ago.


Thank you very much for the very clear response. I assume that if i were liable for CGT on my share, I would not be liable for IHT on that share or does the 7 year rule still apply if this is treated as a gift?

Expert:  Aston Lawyer replied 3 years ago.

Hi again,

Apologies for the delay in replying.

The gift of the half share is still liable to IHT, in that the 7 year rule would apply. Tax and more tax!

Kind Regards

AL

Customer: replied 3 years ago.


Thank you very much. One more thing. What about setting the IHT allowance from my father's estate (nil rate band) as the value of the "share" in the property? Does that help in any way? Does that safeguard that amount at least while avoiding it being a "gift"?

Expert:  Aston Lawyer replied 3 years ago.

Hi again,

Your parents have a joint tax free Estate for IHT of £650,000, so it makes no difference whether your Father post death gifts the half share to you or if your Mother gifts it to you.

Hope this clarifies matters.

Kind Regards
AL
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