Intestate - do nieces and nephews inherit?

Yorkshireman99

MobileSaver wrote: »

Good point, seems a perfectly reasonable justification for the way it works.

I would add that the executors really must get paid for profesional advice. If they get it wrong they will be personally liable. This is a legitimate expnse for the estate to pay.

MobileSaver

Mojisola wrote: »

As B has now died, his share of A's estate will be shared out according to his will or the intestate rules, whichever applies.

So there's a new twist following a big family meeting yesterday. The surviving brother has revealed that the uncle had £80k cash in the bank and the two (at the time) surviving brothers had agreed this would be split between the four nieces and nephews and one other person. I.e. out of the intestate £800k net estate, the two brothers would receive £360k each and then £80k would be split between five other people.

This was to have been done by a deed of variation but the other brother died before this could be signed. Can the two brother's wishes still be honoured? My understanding is that beneficiaries who would lose out can agree on a DOV but can the representative/administrator of the deceased brother agree/sign a DOV in this case? (Noting that the administrator is one of the nephews and hence a minor beneficiary if the DOV was agreed, a conflict of interest perhaps?)

Perhaps the question should be... what takes precedence for the administrator? The genuine wishes of the deceased (the uncle's solicitor/adminstrator was aware of the planned DOV) or rigidly following intestate rules and maximising the deceased estate's value? Does the brother's administrator have any discretion at all? (Of the brother's beneficiaries, only the wife would be worse off with a DOV but she would be happy for the brother's wishes to be honoured.)

Yorkshireman99

MobileSaver wrote: »

So there's a new twist following a big family meeting yesterday. The surviving brother has revealed that the uncle had £80k cash in the bank and the two (at the time) surviving brothers had agreed this would be split between the four nieces and nephews and one other person. I.e. out of the intestate £800k net estate, the two brothers would receive £360k each and then £80k would be split between five other people.

This was to have been done by a deed of variation but the other brother died before this could be signed. Can the two brother's wishes still be honoured? My understanding is that beneficiaries who would lose out can agree on a DOV but can the representative/administrator of the deceased brother agree/sign a DOV in this case? (Noting that the administrator is one of the nephews and hence a minor beneficiary if the DOV was agreed, a conflict of interest perhaps?)

Perhaps the question should be... what takes precedence for the administrator? The genuine wishes of the deceased (the uncle's solicitor/adminstrator was aware of the planned DOV) or rigidly following intestate rules and maximising the deceased estate's value? Does the brother's administrator have any discretion at all? (Of the brother's beneficiaries, only the wife would be worse off with a DOV but she would be happy for the brother's wishes to be honoured.)

The agreement is of no consequence and the intestacy rules must be strictly adhered to. The administrator has no discretion whatsoever. Furthermore the £80,000 must be disclosed for probate when the LOA is applied for. Once the LOA has been received if ALL affected beneficiaries agree then a DOV can be done BUT no beneficiary has to agree and can effectively veto the idea, If any minors are beneficaries then a DOV cannot be done. I would strongly suggest that formal, paid for legal advice is obtained. Ther may well be penalties if IHT is due for the delay. The adminbistrator MUST apply the rules correctly even if they would personally lose out.

MobileSaver

Yorkshireman99 wrote: »

the £80,000 must be disclosed for probate when the LOA is applied for. Ther may well be penalties if IHT is due for the delay.

The uncle's £80,000 has already been declared and I believe the IHT already paid, the uncle's death was over 6 months ago and his estate is being administered by a professional solicitor.

Yorkshireman99 wrote: »

Once the LOA has been received if ALL affected beneficiaries agree then a DOV can be done BUT no beneficiary has to agree and can effectively veto the idea,

For the uncle's estate there are/were only two (intestate) beneficiaries; one surviving brother and now the deceased brother's estate.

For the deceased brother's estate the (intestate) beneficiaries are a wife and four children

So you are saying that the nephew acting as administrator of the deceased brother's estate would need the agreement of all of the brother's estate's beneficiaries regardless of whether each beneficiary is better or worse off as a result of the uncle's estate's DOV?

The government's Intestate web pages suggest only those worse off need agree:

Change a will after a death

You can change a person’s will after their death, as long as any beneficiaries left worse off by the changes agree.

If there’s no will the law decides who inherits. You can make changes to the inheritance in the same way as if there’s a will.

1) The "beneficiary" of the uncle's estate is the deceased brother's estate of which the nephew is the representative but you don't believe he has the authority to agree to a DOV of the uncle's estate?

2) As the beneficiaries of the DOV would be the nephews/nieces and they are also beneficiaries of the brother's estate they would inherit more overall (as effectively the surviving brother is gifting them half of the £80k from his entitlement) with the DOV and the only loser would be the wife. However the nephews/nieces would also technically be receiving less from the deceased brother's estate as that would now be short the other half of the £80k. If this was an issue possibly the surviving brother alone could DOV just £40k from his share and the deceased brother's 50% share not get touched?

Professional advice will be sought; just trying to get a handle on the right questions to ask and discuss to see if others ways of achieving the same aim are possible.

p00hsticks

Rubik wrote: »

The children of the brother who died will inherit his share of the estate. https://www.citizensadvice.org.uk/family/death-and-wills/who-can-inherit-if-there-is-no-will-the-rules-of-intestacy/

I think you're missing the fact that the brother who died after the initial death was married

Mojisola

Rubik wrote: »

The children of the brother who died will inherit his share of the estate. https://www.citizensadvice.org.uk/family/death-and-wills/who-can-inherit-if-there-is-no-will-the-rules-of-intestacy/

This would only come into play if the father had died before his brother.

Yorkshireman99

MobileSaver wrote: »

The uncle's £80,000 has already been declared and I believe the IHT already paid, the uncle's death was over 6 months ago and his estate is being administered by a professional solicitor.



For the uncle's estate there are/were only two (intestate) beneficiaries; one surviving brother and now the deceased brother's estate.

For the deceased brother's estate the (intestate) beneficiaries are a wife and four children

So you are saying that the nephew acting as administrator of the deceased brother's estate would need the agreement of all of the brother's estate's beneficiaries regardless of whether each beneficiary is better or worse off as a result of the uncle's estate's DOV?

The government's Intestate web pages suggest only those worse off need agree:

1) The "beneficiary" of the uncle's estate is the deceased brother's estate of which the nephew is the representative but you don't believe he has the authority to agree to a DOV of the uncle's estate?

2) As the beneficiaries of the DOV would be the nephews/nieces and they are also beneficiaries of the brother's estate they would inherit more overall (as effectively the surviving brother is gifting them half of the £80k from his entitlement) with the DOV and the only loser would be the wife. However the nephews/nieces would also technically be receiving less from the deceased brother's estate as that would now be short the other half of the £80k. If this was an issue possibly the surviving brother alone could DOV just £40k from his share and the deceased brother's 50% share not get touched?

Professional advice will be sought; just trying to get a handle on the right questions to ask and discuss to see if others ways of achieving the same aim are possible.

As I said professional advice is required. By all means hypothesise but trying to second guess what a solicitor may advise is probably not helpful. As always advice from here should not be regarded as definitive. I will always give you an honest answer based on what you have disclosed but please remember I am not a solicitor nor, AFAIK neither are the others who have responded. When you speak to the solicitor it is absolutely crucial you tell him the full story as unemotionally and clearly as you can. Sounds obvious but my own experience in another field over many years is that the client, usually quite innocently, often fails to give the full picture. The skill is in asking THEM the right questions! Good luck.

getmore4less

If all you are trying to do is redistribute the £80K from the first death then you need to look into the tax benefits of a DOV attached to that death.

This will mainly be the IHT affairs of the second deceased brother since some of their inheritance will bypass them(+£40k of which at least 1/2 gets spouse relief anyway), but that may already have close death relief anyway.

The key being how much of the nil rate band gets used up by the assets not getting spouse exemptions and not transferable to the spouse.

Depending on the numbers you may be over complicating what could be quite a simple situation with regular gifts to balance out the end game.

getmore4less

Another thing is that the second death which is intestate as long as all the children as adults then there can be benefit in them doing a DOV that reverts the full estate to the spouse and get 100% relief and full transferable nil rate bands, the spouse can then gift which become PETs so if they survive 7 years they get an increased nil rate band.

it all depends on full details of the numbers which need to go to someone that knows what they are doing.

sheramber

According to GOV.UK

If there is no wife and no direct descendents

Intestacy - who inherits if someone dies without a will?
The estate is shared equally between the brothers or sisters.

If a brother or sister has already died, their children (nieces and nephews of the deceased) inherit in their place.