Sitting tenant: DB living in deceased parent's house...

[LittenTree]

What are my options?

Disclaimer: I hope that by posting in 'legal' it's understood that yes, family wills and outcomes are deeply distasteful etc etc ..

But I am interested to know how 'the law' stands on this scenario:

Mother is widowed. She owns her home outright and has a Will, which divides her Estate 5 ways; 2 to me (DD), 2 to my DB (her DS); 1/5 to 'any grandchildren'.

I am married with the only GDCs. DB (her DS, just to make it clear!) is single, no dependents.

DB is rather profligate. Mum and dad (RIP) helped him buy his own house 15 years ago (they didn't 'compensate' me for this, in fact, DB told me, not them! but that's OK- I do understand 'the situation'! DH and I are Mr & Mrs Boringly- Responsible, own home, no debts, 'proper jobs' etc), which he 'lost' most of in a legal case involving a casual girlfriend whom he'd persuaded to go 'in' on his mortgage to increase his borrowing power (which he availed himself of lavishly), with no financial obligations on her whatsoever, it was just a 'ploy' (and he went 'Joint Tenants, fgs! Abysmal lack of legal advice, there). So she, 7 years later, out of the woodwork, demanded half the house and got £20,000 out of him. But that's another story.

He currently rents. He was made redundant recent from a surprisingly well-paying job, £25k pa for basic van driving + free use of van, which was great. He has fortunately for all of us, (very much him), been offered another similar job but I gather it really is just above BW. No use-of-vehicle ooh, etc.

Being more or less '50' myself and having been around the block a few times (i.e. I know what he's like!), I know full well what will happen: He will, once again, discover he can't finance his 'champagne' lifestyle on beer wages. He has no loss of pride whatsoever in moving back in with 'mum'. When the 'girlfriend' thing hit the fan, 4 years ago, his immediate approach to mum was 'How would you feel about me moving back in? Cos I'm broke'- I mean, he left there at 36!). He's now 51, she's 78. She has said she'd very much prefer that he didn't but wouldn't see him homeless.

My question: IF he were to move back in very soon, what are his rights as a 'sitting tenant' when, 'come the day', the Will needs honouring. He absolutely could not afford half the commercial rent on mum's house to pay me (it's worth about £450,000).

So what might happen? Thing is, his 2/5 of mum's Will would get him a 1 bedroom flat, and 'my' collective 3/5 will pay my DS's university fees.

I would appreciate any advice about what we all need to be aware of etc.

[LittenTree]

And, fwiw, I sort of need to know where I stand if mum needs nursing home care etc if DS is in the house. Unfortunately, she doesn't understand power of attorney, so when I mooted it about 5 years ago, she was angry, stating 'It's MY money, I'll do what I want with it'.... She does see herself as immortal despite her 40 a day habit. I also confess that I am a bit wary of sticking my neck out as Mother can be difficult and touchy and I wouldn't put it past her to write me and her grandsons (on whom she dotes) all out of her Will completely in a fit of pique...

I suggested it (PoA) because- and this is the truth- I just know that should mum need that care, DB will only countenance the basis state care rather than see his inheritance 'squandered' on decent private nursing home care of a 'gaga' old lady ('She won't know any better, will she?'). I am a HCP- I have a better grasp of these things and of how basic 'basic council care' for Alzheimers can be! BUT, I must admit that, with all her faculties intact, she basically removed my ability to ensure she's properly cared for (£450,000 would go a long way..) and of course, understandably, wouldn't believe for a second her DB (from whose fundament, 'the sun shines') wouldn't do 'the right thing'... so I am maybe a tad less inclined to fund her care out of my family's budget then go to court to claim it back from the Will than I otherwise might have been.

[sneezecakesmum]

To be a sitting tenant he has to be renting the house from your mother with a formal tenancy agreement. Is this the case?

When a neighbours mother died, her house had to be sold, despite her son living there, to fulfill the terms of the will. The proceeds were then divided between the siblings. Whether this was by mutual agreement or legal obligation I dont know.

Contact a solicitor who deals with wills for advice to get a definitive answer.

[ampere]

No, currently he's still in his own rented accommodation- I am 'thinking ahead' to what I suspect is the not-too-far-distant future, when his 'outgoings' outstrip his income.

I doubt he will have any sort of rental agreement in place with our mum because the reality is he won't be paying her any rent!

[YesMaam]

Sitting tenant is a technical term for proper tenants with tenancy agreements. If your brother returns to live with his mother he will be likely to be simply occupying by way of an informal licence which she can terminate whenever she fancies.

Unless she changes her will to give him a life interest (a right to live there forever even if it is still to be split on his death 1/3rd to you 1/3rd to his estate 1/3rd to grandchildren) then it is unlikely he would be able to prevent a sale to give effect to the distribution of the estate.

However, it could all get messy, he could refuse to move out to give vacant possession, the executor might have to get a possession order to get him out etc.

Perhaps you need to speak to him, rather than your mother about the future...

[HecateTrivia]

I think you may have to just accept that when the worst happens - you are going to have a fight on your hands to get him out. Assuming the house is still in your mum's possession at that time and she hasn't sold it or anything.

Re how they have helped your brother - Anything she does while she's still here - giving him money etc, you are going to have to put out of your mind. It's hers and she can do what she likes with it. So she doesn't have to compensate you for it. To avoid resentments, you are going to have to totally separate in your mind anything she chooses to do with her money while she's here from any inheritance you may get when she sadly passes away. Although I think the law has something to say about gifts given less than 7 years before death?

I don't envy you, it must be awful to be having to contemplate these issues and try to plan and prepare before the person has even died!

[HecateTrivia]

oh god. That last sentence did NOT come out right It reads like the bitchiest PA attack EVER.

I genuinely meant that it is actually really a terrible situation to find yourself feeling worried about such things!