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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10456
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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My daughter and son in law are buying a new property and I

Resolved Question:

My daughter and son in law are buying a new property and I am giving them £160k from the proceeds of my home which I am selling (we have reached exchange of contracts).
My daughter is selling her home as well and we are both using the same solicitor for the sale of our houses and purchase of the new one. I do not want or need to be on their mortgage, She is my only child and we do not foresee any problems.
However, the solicitor has emailed my daughter and said it is necessary for both of us to seek independent legal advice on how my interest in the new property can be protected and possibly also on a declaration of trust.
Can you please advise what you can do for me. Many thanks
Submitted: 2 years ago.
Category: Law
Expert:  Aston Lawyer replied 2 years ago.

Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

As you are probably aware, as you will not be on the Mortgage, you won't be entitled to go on the Deeds to the new property, and hence you will not be a legal owner of the property. Your Solicitor is therefore acting correctly in advising you to take advice as to whether you would like to protect your financial interest in the property.

If you decide to do nothing, which is your decision, you just need to be made aware that the £160,000 you are putting into the property may get "lost" if any of the following unfortunate events happens-

1. your daughter runs into financial problems/can't pay the Mortgage and the property is repossessed.

2. Your daughter/son in law runs into financial problems and is made bankrupt. The Trustee in Bankruptcy would be entitled to request that the property be sold to enable the debts to be cleared.

3. If your daughter divorces, and the property needs to be sold, her husband may walk away with a percentage of the proceeds of Sale.

4. If your daughter dies prematurely, the house will pass to her husband, and he would then become the sole legal owner, and therefore be entitled to deal with the property as he so wishes.

I would hope none of the above events would ever happen, but as a Solicitor, you always have to look on the bleak side and advise your client accordingly.

It is of course up to you, but you may just want to get a Declaration of Trust drawn up, which will basically set out that you do indeed have a financial interest in the property. Without a Declaration, there won't be any evidence that you have contributed to the purchase. You wouldn't have to enforce the Declaration of Trust - it is merely a piece of paper setting out that you have contributed £160,00 towards the purchase -and you could destroy it at any time, but it could be used as an "insurance policy" for you in the unlikely event of any of the above scenarios happening.

I hope this assists you and sets out the legal position.

Kind Regards

Al

Expert:  Aston Lawyer replied 2 years ago.

Hi Patricia,

Can I assist you any further?

If not, I would be grateful if you could rate my answer.

Kind Regards

Al

Customer: replied 2 years ago.

Thank you for your response to my question.

I have emailed my solicitor who requested I get independent legal advice

and copied in your reply to my question. Whilst I am very happy with your answer I'm not sure I have done enough to satisfy her. I saw from further correspondence it needed to be in the form of a letter on headed paper!!. It's very difficult when the person you are paying wont answer a phone call to the best way forward.

My daughter has emailed also suggesting the house be purchased as Tenants In Common with a declaration of trust drawn up to protect my interest. We are not even sure if she will reply. It is frustrating because we were guided by the Estate Agent for both of us to go with their "recommended" solicitor who would act for both of us. They knew from day one that I was putting 50% of the proceeds of my house into their property which I will also live in.

The solicitor has also suggested I should see an Accountant as I may have to pay a tax on this money. I was only aware of a tax my daughter would have to pay if I didn't survive for a further 7 years. Am I correct.

Many thanks for your help

Pat Davies

Expert:  Aston Lawyer replied 2 years ago.

Hi Pat,

Thanks for your reply.

There is no definite requirement that you get a letter from a third party Solicitor confirming you have taken independent advice. (I think your Solicitor is being too pedantic here).

Not sure how far through the process you have got, but you can always change Solcitor if you are not getting the required service.

As regards ***** ***** ar eindeed correct. There won't be any tax payable now, but your gift will be classed as a lifetime gift, so for Inheritance tax purposes, tax may become payable on it if you were to die within 7 years from the date of making the gift.

Good luck.

Please let me know if I can assist any further.

If not, I would be grateful if you could rate my answer.

Kind Regards

Al

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