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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9335
Experience:  I have been practising for 30 years.
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I wish to purchase two thirds of my dad's house from my two

Resolved Question:

I wish to purchase two thirds of my dad's house from my two brothers with a mortgage that has been approved. My father died in September last year so still in 2 year Will change limit both brothers will agree to a will change. I have been advised poorly by two solicitors about paying stamp duty. I have been advised also I can put the house in my sole name and set up a trust fund for my two brothers this will then not be liable to stamp duty, is this correct and would there be any time limits on them withdrawing the monies out of the trust fund. Also how quickly can they be set up.
Kind regards
Submitted: 12 months ago.
Category: Law
Expert:  F E Smith replied 12 months ago.

Sometimes, you will get different advice from different solicitors. If every solicitor gave the same advice, nothing would ever end up in court because each party in court has been told that they are right by their own solicitor.

You can do a deed of variation within the 2 years and then, the house is treated as though it was left to you in the will. However, what you can’t do is give your brothers money for it because of you were, then it’s not a deed of variation, it’s tax evasion.

Whether there would be any stamp duty payable would depend on the price that you are paying for both shares together, the two thirds and whether that was over the stamp duty limit.It may be that there are assets in the estate which you could “trade” offset you having the house and they get the other assets savings investments et cetera.

You could do the deed of variation with the property in your name and then set up a trust fund so that the property is held on trust for you by your 2 brothers and that would give your brothers and interest in the property although it would not give them their money until the property was eventually sold.

You could then sell the property at some stage in the future (near future?) and gift the money to your brothers.

On the face of it, that seems infinitely doable. However, I cannot help feeling that this is bordering on tax evasion and the last thing you would want would be to be prosecuted. Hence, I suggest that your solicitor runs the scenario past the stamp office and get confirmation from them that this is not liable for stamp duty. If you don’t want to wake up the stamp office for fair of them saying that stamp duty is payable, then you’ve answered your own question as to whether this works or not.

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Best wishes.


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