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Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 34142
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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My parents are both frail and have made a will. They have

Resolved Question:

My parents are both frail and have made a will. They have left their house to me and my sister in this will. They have the house in a trust so if one of them has to go into a home, their house will hopefully not be seized by social services to offset the cost of this care.
My sister and I (who both live abroad and cannot offer care without abandoning our jobs) are nevertheless concerned that if this scenario pans out, and the remaining parent ends up having to go into a care home, our inheritance will be vulnerable to compulsory confiscation.
The question is, how can we protect against losing our inheritance?
Submitted: 1 year ago.
Category: Property Law
Expert:  Clare replied 1 year ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first

To check - when one dies their half goes to you and your sister is that correct?

Customer: replied 1 year ago.
No, when one dies, the house goes to the surviving spouse. When the fina; parent goes, the will states that the house goes to my sister and I equally ie 50% each.
Expert:  Clare replied 1 year ago.

Are you sure - that does not protect the property in any way - I would have expected than the surviving spouse would simple have the right to use the other "half"?

Customer: replied 1 year ago.
well that's exactly the point. My sister and I do not feel that the property is proteced by this arrangement, whereby when one of the parents die, the house goes to the surviving one. When the survivor ends up potentially needing a place in a care home, then we feel that the property will be vulnerable to seizure by social services. At that point it seems irrelevant that our parents have specificed in their will that when the final one dies, the 2 siblings euqally inheret the property...as long as it hasn't been seized of course!
Expert:  Clare replied 1 year ago.

I thought you said that a Trust had been created?

Customer: replied 1 year ago.
there is a trust; the existence of which, they were told, would likely deter or make less likely, an attempt to seize their house when either one of them ends up being the sole survivor. The solicitor who drew this up 2 years ago stated that this type of trust would need to be in force preferably for at least 2 years before it would likely work, and that after 5 years in force, it would be even more likely to work. I was there and I have to tell you it sounded a bit vague to be honest.
Anyway, I am keen to find some way to avoid losing our inheritance; would it be a good idea for example for us to visit a solicitor and have my and my sister's name added as co-owners on the deeds?.
Expert:  Clare replied 1 year ago.

Oh dear.

In fact there are few ways of defeating a claim in respect of Care Home fees.

There is a way of protecting 50% of the property however.

This is done by "Severing the Joint Tenancy" so that they each own 50% of the property.

They then make Wills leaving their share to you and your sister whilst giving the survivor the right to remain in the property for so long as they wish.

When the first to die goes the survivor can remain in the property (or downsize provided the Willis well drafted) but half of the assets is protected from any subsequent fees.

This is the only effective way of protecting any part of the house I am afraid

Please ask if you need further details

Customer: replied 1 year ago.
Thank you Clare,you mention there are few ways of defeating a claim for care home fees; could you outline the other ways please apart from the severence of joint tenancy?
Expert:  Clare replied 1 year ago.

Frankly even setting up a full trust where the property is no longer in any way under their control may NOT be effective as the law currently stands as the settlement is subject to challenge - and of course it would leave your parents entirely dependant on the Local Authority in terms of their choice of Nursing Home

Customer: replied 1 year ago.
how about if me and my sister were co owners of the property?
Expert:  Clare replied 1 year ago.

That will not work unless you actually pay full price for your share.

Otherwise the Local Authority can simply work on the basis that the whole value is available for your parent before taking over payments

Customer: replied 1 year ago.
are there any other options? They worked really hard for their modest house and they would love my sister and I to benefit from it.
Expert:  Clare replied 1 year ago.

No I am afraid not - protecting half is your best option

Clare and other Property Law Specialists are ready to help you

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