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Will - excluding a child
Comments
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So even though in intestate the spouse comes first if there are children then they can try and claim some of the money.
I guess this then leads me back to my previous question:
What if my husband died (without a will) and between us we had £50k.- Would I get the first £25k and the remaining £25k goes towards the trust for the children (and they suffer a shortfall); or
- Would the first £47k go to the children for their trust and I’d get the remaining £3k (with me suffering the shortfall)?
But how can your share of the assets form part of his estate? you surely would be talking about only £25k.
The children are not entitled to 'inherit' anything. As far as I can see it is a question of looking to the estate to make provision for their upkeep.I would think any case brought before the court would have many factors taken into account.
I would be really interested to know if anyone has actually had to do this.0 -
Ok thank you DUTR. I understand the concept.
As both of my Husbands children are under 10 there is a potential that in total £47k would need to be put in trust to keep them maintained until the age of 19 (on the presumption that they remain in full time education).
There’s one thing I still don’t understand though…..
What if my husband died (without a will) and between us we had £50k.- Would I get the first £25k and the remaining £25k goes towards the trust for the children (and they suffer a shortfall); or
- Would the first £47k go to the children for their trust and I’d get the remaining £3k (with me suffering the shortfall)?
There are no exact figures anyone can give you, because the Act in question isn't worded like that.
The first rule is - the will or intestacy applies. If the will applies, providing it's validly made, and clear, the terms in that dictate exactly what happens.
If there is no will, the intestacy rules come into play. These are complicated, but precise.
If the dead man leaves a wife and children (doesn't matter if they are her children as well, or whether they are legitimate) the wife gets the personal possessions, and the first £250,000 of the estate. The rest is divided in 2 - half shared between the children once they reach 18, the other half in trust. The wife gets the interest on the capital of the trust for the rest of her life, then the capital goes to the children.
So, for example, the intestate man's estate is worth £100,000. Wife gets the lot.
Intestate man's estate is worth £500,000. Wife gets £250,000. Two children get half of the rest - £125,000 between them. Wife gets the use of £125,000 for her lifetime, but can't touch the capital. When she dies, it goes to the children.
That £250,000 goes up from time to time, with inflation. Latest figure is £250,000 as far as I know.
There are all sorts of complicated rules about siblings, half-siblings, uncles, half-uncles etc, if there isn't a spouse or child.
The above rules are subject to the Inheritance (Provision for Family and Dependants) Act 1975 only. Until that Act was passed, essentially it was will or intestacy, no matter how destitute that meant wives / husbands / children were.
Under the Act, various people can apply to the Court on the grounds that the will or intestacy rules don't provide for them.
Specifically, under section 1:
that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.
So the person applying has to show that (1) they come within one of the list of people who can apply, and that (2) reasonable financial provision hasn't been made for them.
The definitions part in section 1(2) of the 1975 Act says:
(a)in the case of an application made by virtue of subsection (1)(a) above by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing), means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance;
(b)in the case of any other application made by virtue of subsection (1) above, means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.
section 3(1) sets out the relevant factors for the court to consider when deciding if there wasn't reasonable financial provision made for him:
(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;
(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;
(e)the size and nature of the net estate of the deceased;
(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
So if you want a mathmatical calculation, no-one can give you one. The amount of CSA payments would certainly be a valid consideration. So would the position of the wife who isn't the children's mother....much enquiry having been made concerning a gentleman, who had quitted a company where Johnson was, and no information being obtained; at last Johnson observed, that 'he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney'.0 -
POPPYOSCAR wrote: »
I would be really interested to know if anyone has actually had to do this.
One of my best mates went through it recently. Her father died very suddenly, and was intestate. He had 5 ex-wives, one current wife, one mistress, and 3 children.
It was sorted out through mediation, in the end....much enquiry having been made concerning a gentleman, who had quitted a company where Johnson was, and no information being obtained; at last Johnson observed, that 'he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney'.0 -
POPPYOSCAR wrote: »If I understand it correctly. If you die without a will the first £250,000 of the estates passes to the spouse. The remainder is then split equally
held in trust for spouse/divided between children.
Can't see why money is held in a trust for the spouse but thats what it says!
Under these circumstances I don't see how it can be contested as this is the law.
Perhaps someone who has done it and been successful will let us know!!
These are the intestacy rules. Both intestacy and wills are subject to the 1975 Act.
The 1/2 share is held in trust for the spouse under intestacy, and the spouse only gets the income from the capital. The capital passes on the spouse's death to the children....much enquiry having been made concerning a gentleman, who had quitted a company where Johnson was, and no information being obtained; at last Johnson observed, that 'he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney'.0 -
neverdespairgirl wrote: »One of my best mates went through it recently. Her father died very suddenly, and was intestate. He had 5 ex-wives, one current wife, one mistress, and 3 children.
It was sorted out through mediation, in the end.
Good god, I'd loved to have been a fly on the wall in those mediation sessions!! :eek::D0 -
Good god, I'd loved to have been a fly on the wall in those mediation sessions!! :eek::D
I think they were, shall we say, noisy....much enquiry having been made concerning a gentleman, who had quitted a company where Johnson was, and no information being obtained; at last Johnson observed, that 'he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney'.0 -
neverdespairgirl wrote: »These are the intestacy rules. Both intestacy and wills are subject to the 1975 Act.
The 1/2 share is held in trust for the spouse under intestacy, and the spouse only gets the income from the capital. The capital passes on the spouse's death to the children.
It stops the money being left by the surviving spouse outside of her (it is usually a "her") original family.
The state traditionally would rather not be liable for the maintenance of the next generation if that is avoidable.
Elderly people (of both sexes) have been known to make "irrational" decisions about the use and the destination of their inherited wealth, especially historically when this was the only time in their (female) lives they had any.0
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