Inheritance and gifted property

This page has technical information about how money or property can be left to a relative.
It is inevitable there will be growth in people with a learning disability becoming home owners. One of the reasons for this is the demographic changes taking place. The life expectancy of people with a learning disability has improved markedly over the last 100 years and many can expect to live to normal retirement age and beyond.

Three out of four people now retiring are owner occupiers. Half of all adults with a learning disability live at home. This means that for around 37% of all adults with a learning disability inheriting the family home and continuing to live there is a possibility to consider. Thus more people with a learning disability will simply inherit property through a parent or other relative's will.

Where there are siblings, or others who the parents (or other relatives) wish to inherit on the death, then typically what happens is that the executors sell the property and the proceeds are divided amongst those who inherit according to the terms of the will. In this case continuing to live in the family home is not an option however, if properly advised and supported, the inheritance of the disabled person may be enough to acquire an alternative home using shared ownership.

Gifting refers to parents (or other relatives) deciding that they wish to see their son or daughter (or other relative) settled somewhere suitable, in the right place sooner rather than later (through their will and after their death) and they simply purchase a property or part of a property in the case of shared ownership, and then give this to the son or daughter. This is a fairly rare occurrence but perfectly possible.

A variant is to give the property to a third party, usually a housing association or relevant charity, on the understanding it will be used for their relative until such time as it becomes unsuitable or the relative dies. Although this sounds attractive for the housing association or charity, they often have difficulty accepting the property on the terms proposed by the family.

There are legal difficulties in accepting a donation on conditions, for example that it is used exclusively to house a named individual. Also the association or charity may have concerns about the cost of repairing and maintaining the property and fulfilling any other obligations put on them for an indefinite period.

How to access

This option is under the control of the family and/ or the executors in the case of inheritance. To ensure someone can actually continue to live in the family home or another purchased property when they need significant amounts of care or support will require agreement of Adult Social Care and/ or Supporting People. In an ideal world proper forward planning for the individual would have established that in principle this was acceptable.

Pros and cons

Pros:

• Inheriting the family home allows the individual to continue to live in a familiar property and neighbourhood where they are known or even supported by the local community
• Avoids trauma of a forced move on the death of a relative
• Being given a property now allows a thoughtful selection of the right property, in the right place and tested. The family (or other relative) can be involved
• Delivers security of tenure and the asset the property represents means more choice and control over future housing is possible if circumstances or needs change
• All normal advantages of ownership in terms of investment and control over lifestyle, ability to carry out adaptations

Cons:

• How to afford and organise maintenance and repairs in the future has to be resolved since no rent is payable by an outright owner, no housing benefit can be claimed. Shared ownership is better from this perspective as maintenance costs can be met through housing benefit
• Individual takes on all normal responsibilities of being a home owner.

How the money works

Inheritance is straight forward and normally follows the death of the owning relative, most often the surviving spouse or partner. Executors deal with legal matters in the normal way on behalf of the heir (who may themselves be an executor). Gifting is entirely in the hands of the relative who wishes to make the gift of a property.

Note:

• Legal capacity is not required to inherit a property or receive it as a ìgiftî as no contract is involved
• Owning a property where this is your principle (usually only) home is disregarded as an asset for the purpose of welfare benefits

Other issues

It is often recommended families consider creating a Discretionary Trust (see separate leaflet). A Discretionary Trust is often created on a personís death and any property or other assets are put into Trust at this point rather than being directly inherited by the disabled relative.

There are several reasons why transferring the property to a Discretionary Trust might be a better option than direct inheritance:

• Trustees can manage the property and other assets when this may be beyond the capacity of someone with a learning disability. Trustees can contract for maintenance and repairs
• Secures the property better against any attempt now or into the future to claim back the cost of care and support from the value of the property.