# Fair Deal Levy



## rosco (13 Mar 2016)

I wonder if anyone can throw light on the issue of from what source is the nursing home bill under the  Fair Deal Levy paid from when a person  dies. Is the money due paid out of the savings of the deceased where such savings are sufficient to clear the debt  or is it levied against the whole estate.  I would welcome any facts that might clarify the  matter.


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## Vanilla (14 Mar 2016)

Is there a house/land with a HSE charge on it?


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## rosco (14 Mar 2016)

yes there is a house and land which is willed to one person and the savings is willed to 4 others. Should the fair deal bill be paid out of the deceased savings it would result in  little or nothing left for dispersal among the 4. So any clarification on the matter apprecated


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## Vanilla (14 Mar 2016)

Is this person able to make a will now? If so I think they should take advice on whether they need to change their will to take into account what you are saying.

It may well be that the HSE charge is registered over the property and, normally, subject to the wording of the will, the person inheriting the house/land takes it with the charge- ie they are responsible for paying it. And that may or may not be what the disponer wants.

So my advice would be for the disponer to take advice now.


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## twofor1 (14 Mar 2016)

rosco said:


> I wonder if anyone can throw light on the issue of from what source is the nursing home bill under the  Fair Deal Levy paid from when a person  dies. Is the money due paid out of the savings of the deceased where such savings are sufficient to clear the debt  or is it levied against the whole estate.  I would welcome any facts that might clarify the  matter.



Are you referring to the Nursing Home Loan (Ancillary State Support) ?

If yes, then there will be a Charging Order placed on the property, which means when the property is sold, this debt, if still due, will have to be paid from the proceeds.

I don’t think there would be any issue, from the HSE's perspective anyway, discharging this debt from savings or whatever, (if that could be done) in that case, the charge should then be removed from the property.

That’s my understanding, for such an important issue though, professional advice would be advised.

You will find lots of info here:

http://health.gov.ie/wp-content/uploads/2014/04/Frequently-Asked-Questions.pdf


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## rosco (14 Mar 2016)

many thanks Vanilla and twofor1 for your advice . The HSE bill has arisen as the person availing of the Fair Deal scheme died last Sept (2015)  and the charge on the estate of the deceased was issued by the HSE some 3 months ago . I am joint executor of the will and my solicitor entrusted with dealing with the probate process was unsure as to whether the outstanding bill could be paid from the deceased bank savings or would have to  be levied as a charge on the house and lands .(Solicitor presently seeking clarification on the matter). As the bill is rather substantial is has serious financial implications for all parties . Should the savings be used to discharge the debt it would result in very little money left over for the benefactors who were hoping to benefit to the amount bequeathed in the will. If the charge is to be placed on the benefactor of the house and land I feel it will necessitate sale of same to meet CAT and Fair Deal charge..
Any further clarification will be appreciated.


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## twofor1 (14 Mar 2016)

An interesting dilemma and way beyond my layman’s expertise, but would be very interested in the outcome when your Solicitor clarify's.


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## rosco (14 Mar 2016)

Hi twofor1, many tks for your input on the matter , I will post solicitor's advice when I receive same so that others might be enlightened on the matter. In the mean time keep expressing your views on matters of interest to the public .


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## Vanilla (17 Mar 2016)

*Succession Act:


47.*—(1) Where a person dies possessed of, or entitled to, or, under a general power of appointment, by his will disposes of, an interest in property, which at the time of his death is charged with the payment of money, whether by way of legal or equitable mortgage or charge or otherwise (including a lien for unpaid purchase money), and the deceased person has not by will, deed or other document signified a contrary or other intention, the interest so charged shall, as between the different persons claiming through the deceased person, be primarily liable for the payment of the charge; and every part of the said interest, according to its value, shall bear a proportionate part of the charge on the whole thereof.

(2) Such contrary or other intention shall not be deemed to be signified—

(_a_) by a general direction for the payment of debts or of all the debts of the testator out of his estate, or any part thereof, or

(_b_) by a charge of debts upon any such estate,

unless such intention is further signified by words expressly or by necessary implication referring to all or some part of the charge.

(3) Nothing in this section affects the right of a person entitled to the charge to obtain payment or satisfaction thereof either out of the other assets of the deceased or otherwise.


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## cremeegg (17 Mar 2016)

If I understand Vanilla's post correctly "the interest so charged" is the deceased's house. 

And burden of paying the HSE falls on the house. In other words the person who inherits the house has to pay the HSE. 

Obviously the savings could be used and the HSE would be satisfied but the heirs of the savings are entitled to the full amount of the savings whereas the heir of the house is only entitled to the value of the house after the HSE is paid.

But I may have misunderstood.


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## Cervelo (17 Mar 2016)

I would have thought the estate in its entirety would pay the outstanding bill to the HSE because when they applied for the "fair deal" all assets were accounted for.
I presume when most people pass on, their house would make up the majority of their estate and that could be the reason why the HSE might be specific about getting a charge on the house but in this case there seems to have been other assets of considerable value so the HSE might not have got a charge on the house but rather got one on the estate. I would presume this is in the agreement signed between the HSE and the deceased.


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## cremeegg (17 Mar 2016)

Cervelo said:


> I would have thought the estate in its entirety would pay the outstanding bill to the HSE because when they applied for the "fair deal" all assets were accounted for.
> I presume when most people pass on, their house would make up the majority of their estate and that could be the reason why the HSE might be specific about getting a charge on the house but in this case there seems to have been other assets of considerable value so the HSE might not have got a charge on the house but rather got one on the estate. I would presume this is in the agreement signed between the HSE and the deceased.



There are a number of things wrong in this post.

You cannot usually create a charge (a mortgage in effect) on anything other than a property, that is a house or land. The HSE Nursing Home Loan certainly doesnt take charges on anything except homes.

There is no such thing as a charge on an estate.

The situation here seems to be that the deceased has left their house to one heir and their savings to another heir.

My understanding is that the person who has inherited the house must pay the debt to the HSE. That is, they inherit the debt as well as the house, because there was a mortgage given on the house to the HSE.

This may be seen as unfair on the person who inherited the house or not what the deceased wanted, but that doesn't change the position.

However this understanding may be wrong and the info posted is far from comprehensive, proper legal advice is needed.

Unfortunately if the solicitor needed to check if there was a lien on the property in favour of the HSE they dont seem to know what they are at. The Nursing Home loan scheme requires that, any solicitor should know this.


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## Cervelo (17 Mar 2016)

cremeegg said:


> There are a number of things wrong in this post.
> 
> You cannot usually create a charge (a mortgage in effect) on anything other than a property, that is a house or land. The HSE Nursing Home Loan certainly doesnt take charges on anything except homes.
> 
> There is no such thing as a charge on an estate.



Maybe charge is the wrong word, would it be a HSE loan which would be payable from the estate ??


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## Vanilla (17 Mar 2016)

It is a HSE loan, but the security for the loan is a charge on property- exactly as cremeegg says.

The Succession act says that when someone inherits a property with a charge on it, they are responsible for the charge- unless the will specifies otherwise.

However the HSE does not always charge property, I have seen some registry of deeds property that they didnt take a charge on.

So, as often is the case, it depends on the particular circumstances here.


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## chippengael (12 Apr 2016)

I have a similar situation. My mother left substantial land but little in the way of savings. I am the executor, and my brother and I are the beneficiaries. We will have to sell land to meet the substantial HSE loan bill as the savings will not cover it. We are trying to split the land sales in two so that each beneficiary sells enough of his inheritance to cover his half of the bill. Perhaps the OP can agree with each beneficiary that they will pay one fifth of the HSE bill as this is seems the fairest choice. Getting them to agree might be another matter. I understand that the executor may be legally liable if the bill remains unpaid. Can the executor make decision on what to do if no agreement can be reached? After all, the property remains the estate of the deceased until discharged.


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## Wool12 (12 Apr 2016)

I presume when most people pass on, their house would make up the majority of their estate and that could be the reason why the HSE might be specific about getting a charge on the house but in this case there seems to have been other assets of considerable value so the HSE might not have got a charge on the house but rather got one on the estate.


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## Vanilla (13 Apr 2016)

There is no such thing as a charge on an estate.

The Succession Act sets out how charges and debts are dealt with in a strict order. You cannot deviate from that on the basis of what you might feel is fair.


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## MacMun (3 May 2016)

Something similar as well, in our case, the house was not declared as property was not registered to the deceased.  The deceased willed the house to the niece and cash o 2 nephews.  The HSE are now looking for payment of the undeclared asset.  Does the payment come from the residue or from the property.  I have read Vanillas response above but if somebody could simplify it in Lay mans terms it would be much appreciated.


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## Vanilla (3 May 2016)

If there is no charge on the property then the priority of payment depends on the wording of the will, you will need to get a solicitor to advise on the specific circumstances.


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## MacMun (3 May 2016)

Thanks Vanilla, I will speak with my solicitor tomorrow.  One last thing, can you will something that is not registered in your name?


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## Vanilla (4 May 2016)

Yes, you can will a beneficial ownership, but again it all depends on the circumstances


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## Joe90 (9 May 2016)

What if the property is changed to the joint names of the person making the will and the person inheriting the property?  Can the HSE request a charge on the property if the disponer declares the property to be in joint names?


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## Vanilla (17 May 2016)

First of all assets which are transferred within five years of the date of the application are taken fully into account as if they were in the transferor's sole name, so the only 'safe' assets are those transferred more than five years previously. Secondly, yes HSE can put a charge on the property as it is in the disponers name, even if jointly with another. In some circumstances, a couple, the charge is half, in some circumstances the loan can be deferred depending on the relationship etc


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