Very confusing situation regarding Dad's will.

Keep_pedalling

dfgdfghxdfdzgv wrote: »

To clarify - he was domiciled in Scotland. So Keep Pedalling's point that Scottish law applied to him is correct.

Yorkshireman - I get your points about property (as the laws of the land in which that property is located presumably apply - so this would make things complex if he had houses in Spain, France, or even England) but this isn't property. Property is counted as "inheritable estate" in Scotland. As I was not named as direct beneficiary on my father's will, I have no right to claim this.

However, under Scottish law, I am entitled to claim "movable estate" - which in this case includes business/personal bank accounts, pension funds, and his life assurance policy. It just so happens that these accounts/pensions/policies were registered with English companies, which I assume is why they're covered under "English" assets. From what the letter seems to be stating, they're still part of, and included in, his "movable estate" within Scotland, and therefore under Scottish law.

To clarify for Yorkshireman too - he did not die intestate (his will was complete and I have a copy) and his will is based on Scottish law.

As onetwothreefourfive suggests, I'm hoping it is as simple as returning the letter with my signature.

Frankly, while I'm sure he wouldn't have had any issue with me or my brother claiming on this, I do know he would have hated it being some drawn out legal issue, as would I. I'd personally rather just leave it if it were to come to that. Might sound daft, but if I had to fight through courts, etc, it would feel like "dirty" money.

Pensions and insurance policies do not nessasarily for part of his movable estate. For example Insurence policies written in trust do not form part of the estate and will go to whoever is written in that trust. A final salary pension will usually pass to the widow and again does not form part of the estate

Yorkshireman99

Keep_pedalling wrote: »

The courts don't need to enforce anything, the executor of the estate of a deceased Scottish resident has the ability to sell and distribute the UK assets of the deceased in exactly the same way as the the deceased could have done when they were alive,

The only restriction is that they must meet the rights of succession laws as far as distribution is concerned, which is where courts may need to step in. Most Scottish people will have movable assets that reside outside of Scotland in the form of shares, funds or bonds and if this required two wills it would cause major problems because few if any do.

Since the Scottish courts have jurisdiction outside Scotland then how can any assets outside Scotland be claimed? All OK if the holders are happy to release them but if not then the Scottish courts have no way of forcing them. Unless there is specific English and Scottish law that allows this then it can't happen. I am quite happy to accept that this may be the case but can someone please. quote the law or decided cases? I am also making my own enquiries.

Keep_pedalling

I think this may be what you are looking for

http://www.legislation.gov.uk/ukpga/1971/25/pdfs/ukpga_19710025_en.pdf

Yorkshireman99

I am much obliged to you.

rachel230

Dfg and Yorkshireman,
I have been through this also. It was very simple in my case.
Basically in Scottish law the combined number of children are entitled to share between them half of all movable assets. So property is excluded.
You tell the solicitor who is dealing with the Will (or the executor), that you wish to claim your legal rights under Scottish inheritance law.
Give them time to collect in and list all the assets. Ask to see this list.
If there are for example 2 children, then each child, by law, is entitled to a quarter of that amount. You can also ask for any share of interest for this portion.
It should be a relatively easy process and you don`t need a solicitor to do this though you may prefer to engage one to keep matters professional. However the solicitor should not charge you much! If they try to - then they are trying it on!
Hope this helps.

dfgdfghxdfdzgv

From what I can gather so far, the above situation is correct, though I've had a tough time finding a solicitor who is willing to take on the case, or can be bothered to return my/my brother's calls. I'm assuming/hoping that part of the reason is because it is indeed as simple as returning the signed letter, hence it would mean they wouldn't need to go to court or anything complex, and therefore couldn't charge much, so it isn't worth their time.

I have since found out that the reason the life insurance policy isn't simply being used to pay off the mortgage is because my Dad was meant to inform his mortgage lender that he had the policy, and tie it to the mortgage. He didn't do this, so it is paying out, but is being counted as part of his movable estate.

On the above point though, and something I need to clarify - the letter says me and my brother are actually only entitled to a third, so a sixth each, not half.

I'm not sure if this is an error on his solicitor's part, or if the law regarding amount might have changed,

silvercar

I have since found out that the reason the life insurance policy isn't simply being used to pay off the mortgage is because my Dad was meant to inform his mortgage lender that he had the policy, and tie it to the mortgage. He didn't do this, so it is paying out, but is being counted as part of his movable estate.

There are historic reasons for this. Back in the 1980s endowment mortgages required the endowment policy to be registered with the lender. Then in the 1990s came the first sniff that endowments may not produce enough to clear the mortgage, lenders rebranded the mortgages as "interest only" rather than "endowment", with borrowers becoming solely responsible to ensure that they had funds to clear the mortgage at the end of its term. Strongly advised to do so by taking endowment policies, but the forced tie-ing of the 2 together was broken.

So it would have been deliberate that your Dad had an interest only mortgage and a separate endowment policy, with the intention that he used one to clear the other, but no compulsion to do so.

Of course, with your dad's passing that endowment policy will pay out, early and in full. It may pay out to his estate or it may have been written in trust to the lender. If the former that will mean he has more £££ in his estate but will mean there is nothing to clear the mortgage at the end of its term. If the latter, the lender would credit it to the mortgage account.

Of course, now there is the issue that if you and your brother have the benefit of the endowment proceeds, will the your dad's wife be able to afford the mortgage and to clear it at the end of term? She may also have difficulty in remortgaging unless she has sufficient income.

Yorkshireman99

Surely amount due to the children is the net figure for moveable assets after any debts have been paid?

Keep_pedalling

Yorkshireman99 wrote: »

Surely amount due to the children is the net figure for moveable assets after any debts have been paid?

I would have thought the same, first call on the estate after funeral costs is secured debt, so either it pays directly to the lender, or it pays it to the estate who in turn pay it to the lender. In both cases the net movable assets are the same.

silvercar

Keep_pedalling wrote: »

I would have thought the same, first call on the estate after funeral costs is secured debt, so either it pays directly to the lender, or it pays it to the estate who in turn pay it to the lender. In both cases the net movable assets are the same.

That would be true if the debt/ mortgage was in the name of one person only. If a debt/ property/ mortgage is in joint names, all are jointly and severely liable. This means that if one person dies the debt/ property/ mortgage becomes the responsibility of the remaining person. So a property held in joint names becomes the property of the remaining person. (Though a property held as tenants in common would be split according to the ownership split.) A joint debt becomes the debt of the person alive.

So the next question is whether the property was in joint names or held as tenants in common?