Advice for an executor of a will appreciated

Nenen

We'd really appreciate some advice as my husband is getting upset and doesn't know how to handle the family disagreement that is fast escalating into a feud.... all over a fairly small amount of money. The estate (outlined below) is so small that solicitor's fees would really eat into any money left and he also feels a moral obligation to do what he thinks his aunt would have wanted.

My dh is the sole executor of his beloved aunt's estate which, after funeral costs, amounts to about £6,500. Auntie had no children and was a widow on a meagre pension living in council accommodation. Her brother and sister are both dead. She had 5 nieces and nephews; my dh is the only child of her brother and the other nieces and nephew are the children of her deceased sister.

Auntie's will states that any money left after funeral costs is to be split equally between her nieces and nephews... so far so good. The problem is that one of her nieces died several years ago and auntie's will (drawn up by a solicitor) does not mention whether or not the deceased niece's share of the estate should go to her daughter or be shared between the surviving nieces and nephews. My husband believes that Auntie would have wanted it to go to the daughter (who is living on benefits and would really appreciate the money). However, one of the nieces (who fell out with her sister years ago) is kicking up a stink and saying that it should be split only among the surviving nieces and nephews as they are the only ones named in the will.

I am spitting feathers as my husband was the only one of all the n&ns to visit his aunt at all during the last 10 years... he used to do a round trip of 140 miles every month to see her and we were the only ones to go to the hospital when she was dying. We organised the funeral without any help and one niece didn't even come because she wasn't speaking to her sister at the time. My dh is a lovely, kind man and just wants to share the estate with everyone fairly and yet this one niece is arguing the toss and threatening to take him to court for mishandling the estate. Meanwhile, her brother says that he thinks my dh is right and is fighting for the deceased niece's daughter to get her mum's share!

Does anyone know what the legal position is please?

sleepless_saver

If the will says the estate should be split between the nieces and nephews and is silent on what should happen if one of them predeceases the aunt, then it should be shared among the living nieces and nephews. Your OH can't go on what he thinks she might have wanted, he has to go by what is actually written in the will.

If some of them think it's unfair then they could give some of their share to the children involved.

Itsgottabedone

Yes, Sleepless Saver is spot on - the correct thing is to comply with the will when dividing the value of the estate. Perhaps when he sends the shares out he could send a covering letter to the nieces and nephews explaining that legally he can't include the deceased niece's daughter in the payout but there's nothing to stop the beneficiaries from passing on a percentage of their share if they wish.

Mojisola

Itsgottabedone wrote: »

Yes, Sleepless Saver is spot on - the correct thing is to comply with the will when dividing the value of the estate. Perhaps when he sends the shares out he could send a covering letter to the nieces and nephews explaining that legally he can't include the deceased niece's daughter in the payout but there's nothing to stop the beneficiaries from passing on a percentage of their share if they wish.

This would be the line I would take - to comply with the law your husband has to divide the estate between the surviving nephews and nieces but there's nothing to stop him putting the figures in a letter saying that if the estate had been split five ways each beneficiary would have received (for example) £1300. Because X has died, the remaining beneficiaries are now to receive £1625. As a gesture of goodwill because he feels that their aunt would have wanted it, he is sending a cheque for £325 to his niece. It's up to all the others to do what they want to do.

Annisele

If one niece didn't go to the funeral because she wasn't speaking to her sister, it sounds as though there was already something of a feud before your OH's aunt died.

It might help your OH to realise that there's no magic solution here. IMO the feud has nothing to do with the aunt's money or his actions as executor; it looks as though it started years ago - so whatever he chooses to do, he can't be starting a feud.

I agree with the others about distributing the assets exactly as the will says, and not going down the "but she would have wanted" route. I also like Mojisola's suggestion of putting a monetary value on the amount each beneficiary would have got if the estate had been split five ways (I know that's not hard to work out, but I'd want to hammer the point home).

mountainofdebt

Sorry but I'm going to buck the trend here and say that what your OH proposes - ie give the share of the deceased niece to her daughter is the correct course of action.

If the will had stated that the surviving nephews and nieces were to inherit then yes the niece kicking up the fuss would be correct but if the will merely states that nephews and nieces are to inherit then there is no condition that they have to have survived the aunt to inherit.

OP - why doesn't your OH threaten to take the issue to a solicitor who will no doubt refer it to a specialist barrister and just mention the potential costs (or loss of inheritance) - and hopefully this will make them see sense ....or alternatively (if the relationship isn't that close) tell them what you told us - that they couldn't be interested in the aunt whilst she was alive?

londonsurrey

If the will stated that it was to be split between the nieces and nephews or their estates, then it would be everyone, including the dead. If it stated simply nieces and nephews, then its the surviving ones.

My MIL had three sons. Her estate was to be split between the sons. My husband died. I don't get anything from her will.

Mojisola

mountainofdebt wrote: »

Sorry but I'm going to buck the trend here and say that what your OH proposes - ie give the share of the deceased niece to her daughter is the correct course of action.

If the will had stated that the surviving nephews and nieces were to inherit then yes the niece kicking up the fuss would be correct but if the will merely states that nephews and nieces are to inherit then there is no condition that they have to have survived the aunt to inherit.

The OP's husband has to comply with the law as he is the executor. He cannot make decisions like that.

Other than the direct blood line, if a named beneficiary dies, the inheritance cannot go to their children unless the will specifically says it should. The will was not well written. It should have allowed for this situation.

sleepless_saver

mountainofdebt wrote: »

If the will had stated that the surviving nephews and nieces were to inherit then yes the niece kicking up the fuss would be correct but if the will merely states that nephews and nieces are to inherit then there is no condition that they have to have survived the aunt to inherit.

If the will doesn't say anything about what happens if a nephew or niece dies, then their share just goes back onto the pot to be shared among the living.

See link (sorry it's in legal rather than plain English but the gist is clear).

meritaten

as executor then your OH can only comply with the terms of the will. If they didnt make provision for a beneficiary dieing then its not his fault.
if a beneficiary is kicking up a fuss over such a small amount - then invite them to go ahead and take legal action - they wont find a solicitor prepared to take THAT on! its an EMPTY threat! they havent a leg to stand on!
an executor cannot make decisions about including people not named - sorry, but the executors duty is to ensure the estate is distributed as SPECIFIED in the will. they can of course suggest that people give a portion to some one left out - but its only a suggestion and cannot be enforced.

Savvy_Sue

Can you post the EXACT wording? Don't put names, obviously, but that might help.

Also does the will make any reference to "the standard provisions of the Society of Trust and Estate Practitioners' at any point?

My parents worded their wills so that if any of their children with siblings had died before either of them, then that child's share did NOT go to the grandchildren, but it was made explicit, so I think the wording may be key here.

However, if it is explicit that it's only the living who get everything, there is nothing to prevent the 'nice' ones from doing a Deed of Variation, to take a reduced portion and include the great niece. I always used to think that all the beneficiaries had to agree this, but apparently it can be done just by those affected. Even cheaper would be for those who agree with this to give part of their bequest to the great niece.