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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12091
Experience:  30 years as a practising solicitor.
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Can you help with Scottish legal advice on the following

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Can you help with Scottish legal advice on the following query:
In 2005 my mother passed away after a period of illness, prior to her death she tidied up her affairs, selling most of her personal possessions and passing them to her 3 children.
My mother and fathers’ relationship was somewhat difficult and she spoke to me about selling their house and giving the proceeds to her children. I advised that this was not a good idea as my father would have nowhere to stay. I thought the matter had closed at that point, but, my sister and brother were involved in a similar conversation with my mother where my father was present. When the subject was brought up my father said that the house was in his name solely so it would not be sold. Nothing further was discussed. My mother left no will having in her opinion disbursed all her belongings to her children. My father controlled the family finances and I would imagine that my mother would have been unaware of whether the house was in joint names or not.
Following my mother’s death a joint account was closed and 50% of the account balance was transferred into a trust type fund to be disbursed to his children when my father dies. I was aware that the trust had been set up as I was present at the time, but did not realise until finding bank statements etc whilst clearing the house that the money lodged was 50% of the balance from a joint bank account.
I am my father’s power of attorney and have reluctantly(but necessarily) moved him to a nursing home. On clearing the family home and during the sale process it became apparent that the house was in joint names, my sister who was present at the time could not believe that he had lied to the family.
My father is self funding in the care home, I am his power of attorney and have declared the house sale to the local council. I am aware that joint holding means that my mother’s share of the property became my father’s at the point where she died.
Council funding will commence when the value of my father’s estate is £26,250.
As I have power of attorney over my father, I am required to act in my father’s best interests.
I believe that if he had sold the house he would have ensured that my mother’s wishes were upheld.
I feel that his children are entitled to their inheritance from their mother 50% of the house sale price.(I’m a bit biased on this because I am one of the children)
My father’s will is set up to share the proceeds of his estate equally between his 3 children.
I believe my father’s income, savings and 50% of the house sale would cover approximately 7 years of care at the current annual rate.
Would I be legally entitled to pay out 50% of the proceeds of the house sale whilst my father is alive, and, If I did this would the council be able to reclaim this at some point in the future?
Are there any past rulings for this type of situation?

When the house was in joint names the title would either have been joint and to the survivor or simply joint. Where it is joint and to the survivor, the whole house became your father's asset and is liable to assessment. If it was simply joint then your mother could have disposed of her half share to the children by way of a will. However as she didn't make a will her half share would have passed to your father under the law of intestate succession. So either way the proceeds of sale belong solely to your father and could be clawed back by the local authority if the funds are given away and are subsequently needed to meet his care. As his attorney you are legally entitled to do anything that your father is likely to have done himself. If you think he would have gifts the money to his children then you as attorney can do so. You have to be mindful of whether your father is likely to live for longer than the seven years his other assets would cover as there is the risk that the local authority would refuse to pay on the basis that depravation of assets had occurred. Past cases tend not to be reported in the law reports. I hope that helps. Please leave a positive rating so that I am credited for my time.

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