right of residence in a will

[cremeegg]

I have some experience of this type situation and disagree with some of the posters.

It is my opinion that if the situation is that the house was left to the three of ye then the brother is perfectly within his rights to cash in his share.

All he was left was a right of residency. That cannot realistically be sold.

If the other two object he will need to get a court order directing that the property be sold.
After all legally he is a one third owner and the Courts will uphold his property rights.
The Court will order that it be sold unless ye come up with a solution.

He cannot sell what he does not own. He does not own a free title to the house, not even one third of a free title to the house. I cannot see why the courts would even consider ordering a sale.

Your father was badly advised to insert the right of residency in the will and then leave it to the three of you. He has not done any favours. This will is typical of many bad wills made in this country and the only people to gain will be the legal profession.

Why, the father has ensured that his children have a place to live. If they got the cash, maybe the money would end up with the bookies or the publican, or invested in some dodgy investment. We have no idea why the father wished to use his property to ensure his children had someplace to live, but he did and why are people trying to second guess that.

 

[jjm]

Vanessa advice need to be taken into account.Where its get messy is when the next generation gets involved.Who will your sister leave her share to.Your brother may be doing ye all a big favor in sorting it out now .If this goes to court I suspect I know where the costs are going to come out of.This is the question you need to be asking jellybaby10 .Best of luck in sorting it out your brother may let it go for now The next generation may not .Unless there is a clause stating last surviving sibling becomes full owner .if he wants to sell and his sister agrees you will end up as the only person in a position to buy them out .They will have to take whatever you offer.There father done his best if they feel they already have some place secure to live for the rest of there lives they may no longer need there fathers wishes.If ye all can come to a settlement and have a secure place to live for the rest of your lives .your father will have had his wish.

 

[Vanessa]

To a great extent we are grasping in the dark here as we are being fed bits and pieces of the will.
I do know from experience that if the property has been left to three parties then the property will be registered as such and an individual party can go to the courts to compel a sale. The courts will guard his property rights as they have no legal ground not to. However the courts cannot supply a purchaser. No financial institution will provide a mortgage to purchase except to either of the other two. The property will never achieve its true value unless all three give up their right of residence (or they agree to sell to one of them)

The poster has taken on the responsibility of maintaining the house, insuring it etc. He should keep an account of all this expenditure. However he will have to accept that the brother owns one third, has a right of residence, could sell his share if he found a buyer willing to buy and can bequeath his share to whoever he wants. The right of residence dies with him.

 

[PaddyBloggit]

Unless there is a clause stating last surviving sibling becomes full owner .

Now that would have been a sensible addendum to the will.

 

[Bronte]

Thanks PaddyBloggit

I iagree with your view ,I have two choices and I'm going to do one of the actions you have put forward. I will make my position clear to him ,move on and whatever he decides to do after that I will deal with it.

A big thank you to all who replied with their views about this.

Based on what you have posted I'm in total agreement with you. It was your father's foresight that means the one child of his who doesn't have a home will have one. It's as plain and simple as that. As a parent myself, I can reliably say that is what I would wish for my own children. The fact your two siblings have their own home, and handed you the keys speak volumes. You can't buy them out, which I might have suggested, so you take up the residence as per the will and don't give it a second thought. But do try and keep the lines of communication open with your brother.

Your age was a big factor in my opinion.

 

[Bobby2013]

Hello, I have just come into this conversation. I have a question re Right of Residence in a Will.
My father in law left the house to his three children in his will with the Right of Residence for his daughter who has never married. We have just completed Probate and are ready to change the house into their 3 names with the PRAI. In the Schedule to be completed for the name change of the property any burdens must be registerd. We have just discovered that Right of Residence is a burden on the property and will raise a CAT liability for the daughter who will remain in the house. We have also looked at exemption for those who inherit and this seems fine, if the house were sold each of the beneficiaries can avail of the €335k exemption.

Is it correct that the provision 'Right of Residence' must be registered and then the daughter will be liable for Capital Acquisitions Tax because she is allowed to live there but not bring anyone in during her lifetime. Can we chose not to have this on the property folio ??

I have read there is exemption for those who inherit and can prove the home is their only home for the past 3 years ?? The right of Residence seems to create a tax liability ???

Many thanks

Cath

 

[ClubMan]

Don't you have a solicitor advising on this transfer?
If not then you probably should.
And they would be able to address your queries.

 

[Bobby2013]

Don't you have a solicitor advising on this transfer?
If not then you probably should.
And they would be able to address your queries.

We have dealt with probate ourselves which has all gone through perfectly, it was straight forward, nothing complicated. I was hoping to find out if anyone else with Rights of Residence where they have inherited a share in a family home are liable to CAT.

Thank you for your reply.