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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
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Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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Can I purchase a proportion (10%) of my In-laws house and will

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Can I purchase a proportion (10%) of my In-laws house and will that stop the house to being considered as part of his estate if they go into care?

Or if they 'gift' the house to us, and at least one of them survives the 7 year period, while living in the house and paying us rent, will that mean we have avoided al IHT?


Hello and thanks for using Just Answer.

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

The law concerning Nursing home fees is as follows-

If someone goes into a Home, they will be assessed on how capital they own, including any share in a property. However, the house is disregarded in any such assessment if the other spouse is still living in it. Therefore, if only one of your in law's goes into a Home and the other remains living in the property, the value of it is disregarded. If the survivor or both of them go into a Home, the house value will be included 50/50 in any assessment.
If they have sold say a 10% share to you, they would still be classed as owning 90% and hence if they needed to sell in order to pay for the Nursing home fees, this is what would have to happen.

When assessing a party's capital, any gifts they have made are also taken into account, in that if the State can prove that someone has gifted their property to a relative to avoid being assessed as owning that property, they are still treated as owning that property when assessing the amount of their capital. Strictly speaking, the State can look at any gifts made by a party anytime during their lifetime, but the longer the period between making a gift and entering into a Home, the harder it is for the State to prove it was done to avoid paying N Home fees. Generally, any gifts of properties made within 10 years of someone going into a Home are scrutinised and the party would have to show there was a valid reason for the gift being made, other than to avoid paying N home fees.

The only sure way of safeguarding part of a party's property is to make a Will. Basically,your in law's can both make Wills, leaving their one half share in the property to their children/other relatives, with the proviso that the other spouse is entitled to remain living there rent free. The Solicitor who prepares the Will will also need to "sever the joint tenancy" on the property at the Land Registry, so that each party owns this separate 50% share. This is a relatively straight forward thing for the Solicitor to do.
This way, upon the first death, the other spouse is left only owning his or her 50% of the property, the other 50% of the deceased's share passing to the children/other relatives. This therefore safeguards 50% of the property if the surviving spouse needs to go into a Home.
Remember- the house is disregarded anyway if one spouse goes into a Home but the other is still alive and remains living in the house, there is nothing to worry about in this scenario.

On the IHT question, if someone gifts a property but remains living in it, it is classed as a "gift with a reservation" and HMRC are entitled to still class the property as being owned by the deceased party (ie it is looked upon as being a scam and therefore there is no benefit in doing this).

I hope this assists and answers your question. Your in laws should go and see a local Wills Solicitor who can discuss the above with them, and he will also be able to discuss Powers of Attorney with them, so that if they feel they can no longer deal with their financial affairs, their appointed relative (perhaps you or your spouse) can act on their behalf, as Attorney.

Please let me know if you require any further clarification.

Kind Regards

Kind Regards
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