Rights of spouse and a few other questions

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Rose123

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My elderly Mum passed away just before Christmas, my elderly Dad has bad dementia and we are now looking after him, for as long as we can anyway... My Mum owned the house and in her will she left it directly to her 5 children equally, giving my Dad a right to live in the house until he died. As everything seems relatively straightforward we are considering doing the probate ourselves, but I have a few questions I hope you can help with.

(a) It seems that my Dad has a legal right to inherit 50% of her estate. Will this cause a problem with probate? Obviously he will not be contesting the will as he's not of sound mind.

(b) If he ends up going into a home, can we sell the house, given his right of residency?

(c) None of us will end up coming remotely close to the CAT threshold. However, if he doesn't go into a home and so we can't sell the house for a few years, I'm concerned we may end up with a CGT liability, especially considering the house has gone up 100k in value in the past year alone. Any advice on how to manage or avoid this? I'd rather get the probate out of the way now, but if the CAT is based on the market value of the house on the date probate is granted, maybe we would be better off delaying probate altogether, if we're not planning on selling it

(d) If we do delay probate are there tax or legal forms/returns/charges to complete and/or pay?

(e) On a different matter, when valuing her assets for probate, would we need to include jewellery worth less than 1000, and also would the house contents be considered hers or my Dad's and should the house contents be included in the assets? If so, can we estimate the value (nothing of any significant value)?
 
Rose123 said:
It seems that my Dad has a legal right to inherit 50% of her estate.
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Just on this point, in this case where there are children, his legal right share is one third and not half and he doesn't have to contest anything to get it.


The legal right share​

If you have left a will, and your spouse or civil partner has never renounced or given up their rights to your estate, then they are entitled to a legal right share of your estate. This legal right share is:
  • half of the estate if you do not have children
  • one-third of the estate if you do have children
Your spouse/civil partner does not have to go to court to get this share, as your executor must give this share where applicable.
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IANAL - given your Dad's health, I'm pretty sure you will need professional advice; this is my take for now.

You cannot disinherit your spouse; therefore your Mother's will is, I believe, invalid.

That being the case, the Sucession Act applies.

Reading your post, it seems your Dad can no longer manage his affairs & I believe you will need to seek to have him made a Ward of Court, so you can directly handle matters for him.

As regards CGT - well so what? The property has increased in value, you still get more cash in your pocket.

Edit: unless you have valuable antiques or art works, house contents are generally listed at a nominal lump sum value.
 
Rose123 said:
I'm concerned we may end up with a CGT liability, especially considering the house has gone up 100k in value in the past year alone.
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Given that 2024 house price inflation was an average of c. 10% this suggests that the property must be worth over €1M which is all the more reason, as suggested by @DannyBoyD, to get professional legal advice on some of the questions asked and maybe to advise and work on the probate.
 
Rose123 said:
I'm concerned we may end up with a CGT liability, especially considering the house has gone up 100k in value in the past year alone. Any advice on how to manage or avoid this? I'd rather get the probate out of the way now, but if the CAT is based on the market value of the house on the date probate is granted, maybe we would be better off delaying probate altogether, if we're not planning on selling it
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I’m open to correction, but I understand CGT is calculated on the basis of the value of the house at the date of death rather than at the time probate is applied for. If there’s an obvious difference between the value of the house as expressed on the probate application and the actual market value at that time, it may raise a few red flags.
 
Thanks for the responses. House is definitely not worth 1m, I wish!
Regarding my Dad's right to one third, if we started the DIY process would I be correct in assuming that this is not complicated with the Probate office and the end result would just be that he owned one third and the remainder was split between the children equally?
My Mum was following legal advice when she changed her will a few years ago (from transferring everything to Dad, to transferring everything to us with a right of residence for Dad), as the solicitor obviously told her this could remove some complications. I can't understand why the solicitor would have suggested this wording if they knew it couldn't go through as is
 
It seems to me that if you wait until after your dad has passed, it would be a lot more straightforward to administer your mother’s will, regardless of whether you do so yourself or get a solicitor to do it for you.

You would need to maintain the property in the meantime but its increasing value should offset any associated cost.
 
T McGibney said:
What does your solicitor say now?

You'd be mad to do the probate yourselves unless you know exactly what you're doing.
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We haven't engaged one as we were considering doing the probate ourselves as it seemed to be straightforward, now I am having second thoughts!
 
Salvadore said:
It seems to me that if you wait until after your dad has passed, it would be a lot more straightforward to administer your mother’s will, regardless of whether you do so yourself or get a solicitor to do it for you.

You would need to maintain the property in the meantime but its increasing value should offset any associated cost.
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I think you might be right. Are there any implications for waiting - i.e. anything that needs to be done such as returns/documentation etc?
 
It's not remotely straightforward once your father is unfortunately suffering from incapacity.

The very fact that you need to ask a range of questions here confirms that.

By the way, I think you would be foolish to neglect administering your mother’s will until after your father's death, unless on foot of convincing legal advice.
 
Rose123 said:
My Mum was following legal advice when she changed her will a few years ago (from transferring everything to Dad, to transferring everything to us with a right of residence for Dad), as the solicitor obviously told her this could remove some complications. I can't understand why the solicitor would have suggested this wording if they knew it couldn't go through as is
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Maybe you could ask your mother's solicitor about this but (a) they may (legitimately) expect payment for dealing with any queries and (b) they may well decline (and maybe even be obliged to decline) on the basis that their services to your mother were specific to her and her private business.
 
Rose123 said:
we were considering doing the probate ourselves as it seemed to be straightforward,
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All other things being equal it is. But in your case there are too many wrinkles.
Rose123 said:
now I am having second thoughts
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Good! Keep thinking - and get a good solicitor on board, you need to get a handle on your Dad's affairs first & foremost. Probate can wait a few months.
 
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