PeteD
Welfare Department Manager, Stephensons Solicitors, Leigh, Lancs
Member since 23rd Jan 2004
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RE: Can anyone help??
Fri 28-Nov-08 03:58 PM |
The parents are under no legal obligation to leave their estate to anyone....or they can leave it to virtually anyone.
How they choose to divide their estate is entirely up to them. This is the purpose of a will. By the way, if they don't already know, they should make a will!
By dividing their estate three ways between the daughters, there could cetrtainly be problems for the daughter who needs residential care, if the estate divests and is realised by - for example - selling the property (which is what usually happens in these circs). Then she would have actual capital to the value of her one third share, and would fall foul of the Assessment of Resources Act (Reg 25) if she disposed. (i'm assuming the share would be greater than £22,250)
If the property and estate is similarly "split" but the house not sold, then an argument can be raised that the Authority cannot take account of her one third share at all. This is because the accounting of notional capital by an Authority in these circs has to heed whether the capital is realisable if sold on the open market by a willing seller to a willing buyer (so if daughters 2 and 3 refuse to sell their share, then daughter 1 could not - at least usually - sell her third.)
If daughter 1 remained in the home which she no occupies after mum and dad pass away (or if they go into care), the property is disregarded in full as long as she occupies it.
However, if the property is willed to the remaining two daughters (excluding the other) then she has no assessable capital or notional capital for the Local Authority to account for in any financial assessment.
GRAG and AoR rules are open to interpretation on these matters and a lot of dubious advice can be forthcoming even from the Authority (who after all may benefit from such advice being given in a certain, shall we say, non-committal way).
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