probate distribution help

[betty1234]

Good evening, i have posted sometime ago regarding help with probate which i am most grateful for the replies. However this is where i am at now and im stuck again. The probate is just about to be signed over to my brother to take to solicitors to put the four siblings names on the property deeds. It is all equal shares as my mother died intestate. My younger brother is disabled and in reciept of means tested benefits. He knows he has to inform dwp when he eventually gets this and he knows his means tested benefits will cease, but does this only affect his benefit when property is sold and shared out equally?. There is only property left there is no moneies in any bank accounts held by my mum. Also my sister is still living in the property and has done for 63 years as she lived with my parents, so this is holding up any sale. Many thanx for any help..sorry for the rambling!

[des8]

Re: probate distribution help

Once the ownership of the property has passed to you and your siblings, your brother should advise DWP that he has a quarter share in the property.
The Decision makers will decide if , under the circumstances, it should be disregarded as capital for six months, or until sold.
Here are the guidelines used: https://www.gov.uk/government/upload...3373/admh2.pdf
The applicable forms seem to be: H2115 & H2116; and H2048& H2049 (LCW =limited capability for work. SPC=state pension credit)

[betty1234]

Re: probate distribution help

Thankyou so much Des8 in will take him to do that.

[Openlaw15]

Re: probate distribution help

Good evening, i have posted sometime ago regarding help with probate which i am most grateful for the replies. However this is where i am at now and im stuck again. The probate is just about to be signed over to my brother to take to solicitors to put the four siblings names on the property deeds. It is all equal shares as my mother died intestate. My younger brother is disabled and in reciept of means tested benefits. He knows he has to inform dwp when he eventually gets this and he knows his means tested benefits will cease, but does this only affect his benefit when property is sold and shared out equally?. There is only property left there is no moneies in any bank accounts held by my mum. Also my sister is still living in the property and has done for 63 years as she lived with my parents, so this is holding up any sale. Many thanx for any help..sorry for the rambling!

Hello Betty

When is the property likely to be sold? If there are 4 owners in equal shares to the property they each have a right to stay or sell the property. If the disabled person has a joint tenancy it means he does not have anything until the joint tenancy has been severed (as below). How severe is their disability, does the younger one have capacity, ie can he manage his life, finances etc? How old is he, if he is not sui juris (ie at least 18 with capacity), he can only own as tenancy in common (see below). DWP issue is tricky.

Property law

Co-ownership of property is either through joint tenancy (JT) or tenancy in common (T in C). A joint tenancy applies to the survivor rules, meaning on the death of any joint tenant the property passes to the other remaining joint tenants. In your case, assuming a 4 joint tenant ownership the property will pass to the other 3 JT on the JT's death. It means if any of the joint tenants' wills leave something (ie gifts) for someone else, ie family they will not get the gift/s (gift fails). The main difference is that tenancy in common permits wills' gift to be passed to the beneficiary. So, each of you can choose which one you want by telling the solicitor. If you want to cancel a joint tenancy it has to be done by communicating a severance in writing to all joint tenants' addresses, and can be done at any time. Once a severance has been effected it means there is from that point a tenancy in common.

[Openlaw15]

Re: probate distribution help

Once the ownership of the property has passed to you and your siblings, your brother should advise DWP that he has a quarter share in the property.
The Decision makers will decide if , under the circumstances, it should be disregarded as capital for six months, or until sold.
Here are the guidelines used: https://www.gov.uk/government/upload...3373/admh2.pdf
The applicable forms seem to be: H2115 & H2116; and H2048& H2049 (LCW =limited capability for work. SPC=state pension credit)

If the disabled person has a joint tenancy he does not have any share in the property until it has severed. Yes DWP does need to be informed as it is an interest in a property. If the property were to be sold and assuming a joint tenancy the JT has to be severed before the disabled person has a share to give.

[betty1234]

Re: probate distribution help

Thankyou Open law for you informative reply. My brother has his own little flat which hes been in for the last 20yrs its rented and he gets all the usually hb,ctb etc means tested. The only person whom is still in my deseased parents home is my sister who has lived there all her life and is now 63yrs old. She wants to stay in property for a while. I know once my brother and the other 3 sibling sign the deeds he will have 26 weeks before dwp stop he benefits. Does this mean if the house is not sold he will still only have an interest in property and he can remain getting benefit to live on until such times as property sold?. He doesnt was to shirk his inheritence by any means its just if after this time lasp of 26 weeks what happen if he still hasnt got access to any of the property monies. Thankyou for you time in advance

[des8]

Re: probate distribution help

The DWP will not be interested in whether or not the property is sold.
If it is sold, your brothers share is automatically "capital".
While the house remains unsold your brother's share is regarded as capital, but the DWP disregard it when calculating his benefits as per the links I sent you.
They will calculate his share on the basis of a valuation

[Openlaw15]

Re: probate distribution help

Thankyou Open law for you informative reply. My brother has his own little flat which hes been in for the last 20yrs its rented and he gets all the usually hb,ctb etc means tested. The only person whom is still in my deseased parents home is my sister who has lived there all her life and is now 63yrs old. She wants to stay in property for a while. I know once my brother and the other 3 sibling sign the deeds he will have 26 weeks before dwp stop he benefits. Does this mean if the house is not sold he will still only have an interest in property and he can remain getting benefit to live on until such times as property sold?. He doesnt was to shirk his inheritence by any means its just if after this time lasp of 26 weeks what happen if he still hasnt got access to any of the property monies. Thankyou for you time in advance

Update for technicalities. The property will likely be capital (but only as a formality, ie the secretary of state discharging his legal obligations to the state (UK Government), then on close examination/ scrutiny it will be likely disregarded as capital for the reasoning below I provided in this post. It is not automatically capital unless the property has been sold either, especially if there are joint tenants who have not yet severed their joint tenancy. If a court order for sale were necessary the beneficiary with the largest share (in proportion) would like have persuasive power. In law the owners of property have to consult beneficiaries with property interests. So, you see it is not so easy for DWP!

There is likely an interest in property if the property is not occupied. If the property is occupied by his relative, ie his aunty it's not likely to affect his benefit. If the property were empty, not occupied that may be different. If your sister (his aunt) gets a court order to stay in the property the property cannot be sold, so this should mean he stays on his benefit. She has rights to the property so this should not affect your brother's benefit owing to that problem. DWP look at it from a financial view point, ie is the claimant in a position to sell his asset (if he has any) and if he has not done so after a reasonable amount of time, it will be treated as capital more likely than not. If someone else was already living there ie occupied it's very difficult to see how this could be income for capital purposes.

[betty1234]

Re: probate distribution help

Thanku both Des8 and Openlaw for your quick replies. And i must apologise if i seem to misunderstand any advice its just this whole intestate situation has ripped my once close family apart. Its very confusing and upsetting and having to basically try and speak on my brother behalf is even more stressfull. So i will do as you advise and go to see dwp when deeds are signed. I feel better now i have some information so thankyou both much app.

[Openlaw15]

Re: probate distribution help

Thanku both Des8 and Openlaw for your quick replies. And i must apologise if i seem to misunderstand any advice its just this whole intestate situation has ripped my once close family apart. Its very confusing and upsetting and having to basically try and speak on my brother behalf is even more stressfull. So i will do as you advise and go to see dwp when deeds are signed. I feel better now i have some information so thankyou both much app.

Intestate is messy, I agree. By the way Betty I have completed a law degree which includes the study of property law. So my views are not merely lay person but neither are they qualified in the sense that I am a qualified lawyer, because I am simply not.

[des8]

Re: probate distribution help

Whilst Openlaw is correct, t can be put more simply:
The DWP will look on the quarter share , sold or not;, as capital.
However when calculating benefits they will disregard it under certain circumstances eg if a close relative continues living there or whilst there is a (genuine) attempt to sell it.

[betty1234]

Re: probate distribution help

Thankyou so much Des8 and Openlaw i am at best hopeless with anything to do with law and rights etc so your advice has stopped me panicing about how my brother would live if they stopped his benefits etc. So i can now go armed with knowledge to make it look like i know something about what im talking about when i go to dwp. Many thanks again i will post you the outcome in the near future.

[betty1234]

Re: probate distribution help

Good evening, as promise an update on my previous posts you so kindly advised me with. I have taken my brother to dwp and housing benefit to explain the situation. They have informed me that there will not be a change of circumstances until his name is on house deeds or property is sold. Can anyone advise how we as a family handle the next step. Probate has been granted to 4 siblings and my elder brother is the administrator. He now has to register the house as it was unregisted. Does this mean we all need to put our names on land resitry to do this or can administrator just put his on till prpoerty is sold. Can my disabled brother leave his name off until the property is sold. Many thanks.

[Openlaw15]

Re: probate distribution help

Good evening, i have posted sometime ago regarding help with probate which i am most grateful for the replies. However this is where i am at now and im stuck again. The probate is just about to be signed over to my brother to take to solicitors to put the four siblings names on the property deeds. It is all equal shares as my mother died intestate. My younger brother is disabled and in reciept of means tested benefits. He knows he has to inform dwp when he eventually gets this and he knows his means tested benefits will cease, but does this only affect his benefit when property is sold and shared out equally?. There is only property left there is no moneies in any bank accounts held by my mum. Also my sister is still living in the property and has done for 63 years as she lived with my parents, so this is holding up any sale. Many thanx for any help..sorry for the rambling!

Hello Betty

Your brother only has a share of the property where there has been a share after a sale. In real terms he would need to bought out to have a share in any event. Next look at who will be occupying the property as beneficiaries have rights to occupation if they want to, which will require a court order for sale. So, at the present time and even in the future your disabled brother is rather in limbo. They should tell the lawyer that the interest is to be a tenancy in common in equal shares. All 4 names can go on the property's deeds assuming they're all sui juris, ie aged at least 18 and have capacity (mentally able to understand). So there are no problems there. The tenancy in common also means that in the event of either's death the property will not go to the other 3 owners etc.

[betty1234]

Re: probate distribution help

Thankyou so much openlaw, im sorry if its so drawn out but it just seems to be a nightmare situation. Thankyou for your advice i will put that to the lawyer dealing with land registry. As you have probably gathered i dont understand the laws of probate and its very difficult when you are putting somebody else situation forward, but you have put my mind at ease yet again, much app i dont know where i would of been with this site for advice.