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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10401
Experience:  I have been practising for 30 years.
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My wife's parents are going to leave a property 50/50

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My wife's parents are going to leave a property 50/50 between her and her sister. Her sister and her sister's husband suffer from depression and cannot work, they survive on benefits. My wife's sister has two children (the children are 17 and 5 years old, the eldest child is from a previous marriage of the sister). My wife's parents want my wife to help make sure that her sister uses the inheritance properly. Her parents want to make sure that their two grand children get their portion of their inheritance i.e. they do not want to leave 50% of the property to the sister with depression in case she uses it all up to pay for rent, hence her two children will lose their inheritance.
Ideally the parents want the 50% of the house split into 3 thirds , 1/3 for the sister and 2/3 for the sisters children.
If the sister was to receive 50% of the property as her inheritance we have these issues:
1. The sister would not get benefits and may spend the entire inheritance on rent
2. If the sister dies the husband may take the inheritance and deprive the childrenSo what is the best way
1. To make sure the children get their 2/3 inheritance
2. To stop the sister losing her benefits when she inherits

Unless I am missing something, this is relatively easy to resolve.

Your wife’s parents divide the property into 6.

Your wife gets three shares

her sister gets one share

the sister’s children get two shares which are held in trust until they reached age 18. The trustee could be someone who is trusted such as your wife.

That way, only 1/6 of the property would belong to your sister-in-law with the only proportion taken into account for benefits being that 1/6th and also being the only proportion which could potentially pass to her husband.

There is no legal way of inheriting something and not having it taken into account for benefits purposes.

Can I clarify anything for you?

Please don’t forget to rate the service positive. It’s an important part of the process by which experts get paid.

Best wishes.


Customer: replied 1 year ago.
If my wife was the trustee until the children are 18:
1. Does that mean the children will legally be able to demand their inheritance as soon as they are 18 e.g. if it is a portion of a property they could force the sale of the property
2. If the property is inherited and sold before the the youngest child is 18 would the trustee have to look after the money for the youngest child. If so how is the money protected for the child, is this based on trust alone or is there legal protection of the money until the youngest child reaches 18 e.g. is the money keep in a special bank account

Even if there is a document/trust deed which says that the money is not available to the child until age 25, there is old caselaw, Saunders v Vautier which says that as soon as a child is of majority (aged 18) and provided they have full mental capacity, they can bring a trust to an end. If there are a several beneficiaries of the same trust, they must all agree.

If 2 beneficiaries have been left 50% each, then that is 2 trusts.

The property is sold before the youngest child reaches 18, then the money can be held on trust by anyone who is trustworthy but the money should go into a separate bank account so that cannot be “mixed” with any other money. The title of the account should also be “trust account for ABC”, so that of the trustee is holding the money goes bankrupt, then the trustee in bankruptcy cannot touch that money is being one of the bankrupt’s assets.

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