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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I am the Beneficiary in my father's will of the maisonette

Resolved Question:

I am the Beneficiary in my father's will of the maisonette that we live in. My father owns the property, which is leasehold. I've lived here for nearly 30 years, my father wants to ensure that I have somewhere to live after his death. I have lasting Power of Attorney over Property & Finance, should we look into transferring the property deeds over to me?
Advice gratefully appreciated,
Mark
Submitted: 6 months ago.
Category: Law
Expert:  F E Smith replied 6 months ago.

If you are the beneficiary of your father’s will, what is the concern about you having somewhere to live after his death? The property would come to you under the terms of the will.

Is inheritance tax a concern?

Does your father have full mental capacity?

The background detail behind the rational thinking here would be helpful please. Thank you

Customer: replied 6 months ago.
I think you have answered my concerns, thank you. Currently he has full mental capacity, the background concern is simply whether it would be simpler to have the property in my name sooner rather than later. Kind Regards, ***** ***** very much appreciated.
Expert:  F E Smith replied 6 months ago.

If the property is in your name sooner rather than later then obviously, your father is likely to pass away before you do, it will save the application for grant of probate. All that is then already dealt with.

However, if your father continues to live in the property, then it is known as a gift with reservation which is dealt with as though it is not a gift at all and inheritance tax would still be payable in the usual way at the normal rate. He would need to transfer the property to you, in total, with no right for him to live in it before it would escape inheritance tax. However if the total of your father’s estate is not going to be over £320,000 including property and all the other assets, then inheritance tax is not an issue.

If the property is being transferred into your name, then your father should reserve the right to live in the property for life to prevent you booting him out and you should take advice from his solicitor without you being present in the same room.

Provided he has full mental capacity, then your power of attorney is not relevant and he is free to do with the property as he wishes which includes transferring it into your name or not as he feels appropriate.

Can I clarify anything else for you?

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We can still exchange emails if you wish.

Best wishes.

FES.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8720
Experience: I have been practising for 30 years.
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