probate help ,i'm lost

RAS

natches said:

Hi RAS 
I talked to the mother myself when I saw that the probate forms asked for information about adoption ,she said that they were legally adopted by her new husband not just a name changed and one of the children changed his name back to his former name which is also the mothers family name not my brothers name so I asked her if she had put my brother down on the birth certificates as the father and she said she had

I'd cover your own back here.

Get this in writing from the mother, as if any of the children come back later, you'd be the one who was liable.  Just explain that since adoption disinherits her children, you need evidence that you've checked.

It means that the other child get all your brother's share not one sixth.

Mojisola

Choirgrl said:

Mojisola said:

natches said:

and lastly he died instate ,my brother died some yrs ago and left some children (all adult age now ) he had one child to one woman and another five to another woman ,the one with the five moved on with another man when my brother was still alive and it turns out this man she's with adopted all of his five children have they got any claim to the estate ?

If it was an official adoption then those children are no longer considered the offspring of your brother.  What would have been your brother's share will go to the other child he fathered.

I believe this will depend on whether the children were adopted before the OPs brother died or afterwards.

I think the death that matters is natches' father's.

When natches' brother died, if his children hadn't been adopted, they would have inherited from him; if they had already been adopted, they wouldn't have been entitled to anything unless named as beneficiaries in a will.

It seems that the adoption was done legally and so the children would have been issued with new birth certificates giving the new father's name.  

Now that natches' father has died, his estate will be divided between the two siblings - as the brother has died, his share will go to any children which is just one now.

natches

RAS said:

natches said:

Hi RAS 
I talked to the mother myself when I saw that the probate forms asked for information about adoption ,she said that they were legally adopted by her new husband not just a name changed and one of the children changed his name back to his former name which is also the mothers family name not my brothers name so I asked her if she had put my brother down on the birth certificates as the father and she said she had

I'd cover your own back here.

Get this in writing from the mother, as if any of the children come back later, you'd be the one who was liable.  Just explain that since adoption disinherits her children, you need evidence that you've checked.

It means that the other child get all your brother's share not one sixth.

that was/is the worry I'm not unwilling to give them their share if that is what the courts decide the law is the law and all that but if the probate gives me the go ahead to give only the first child the share and then some time later i get a something from their solicitors asking me for it I simply couldn't as I'm incapacitated and only receive ESA  (contributions based ) another reason my dad amended his will 

but I cannot see that at any point the mother would give me any confirmation if she thinks there's money involved I talked to her on the phone because i will need all their names for the probate and thats when i questioned her verbally but nothing in writing

RAS

Can we clarify? Did your dad die intestate? Or was it your brother who died intestate?

Also probate does not decide who gets the money. That is decided by the will or by the laws of intestacy.

If your father had a will, what exactly did it say about the portion going to his deceased son's descendants? 

natches

sorry i've confused everyone my dad did make a will but it cannot be found ,it was at his home but he let a woman stay with him and then he started to get dementia and lets just say he lost a lot of money and the will went missing ,so they both died instate so instate rules will apply.

i've done a will search but nothing turned up 

he did one will years ago leaving me and brother half each and the usual if one of us died before him to leave that portion to any remaining grandkids ,but when my brother died and i got seriously ill and the mother of those five told him she didn't want contact he made another one leaving me everything and for me to use discretion with his grand kids

but as I say I cannot locate this will which I know he had so instate now

McKneff

No will means probate is not required and you need to apply for letters of administration. 
Distribution of his assets must follow the intestacy ru,es 

natches

yes I know that its instate and the rules for that I was muddled with the adopted children ,no IHT and how to report it and pension rules of which i've had some helpful advice so thank you to everyone that has contributed to this thread

RAS

Still think you might need to write to your ex-SIL and explain that if the children were not adopted, they would inherit from their grand-father. So please can she confirm the contents of your phone call and advise the date of the adoption? Include a SAE. 

If that doesn't work:

Does the "single" child have any contact with any of their half-siblings?

Do you know any other members of SIL's family?

Any chance you could check things like 192.com and Ancestry to confirm the names the fivers were using if they lived at home? Ancestry is by the way available free at many larger libraries and often make suggestions about other records relating to the same person. Sometimes it's right and sometimes way off. It may then be possible to locate one or more via those means and things like social media, Companies House etc.

It's not easy; I spent a good part of a year confirming the details relating to one family member. But that was only in fits and starts, in reality most was in three sessions. 

Choirgrl

@natches I think that if I were in your situation I'd want to get (and pay for) some proper legal advice, so that I was reassured myself that I was doing the right thing and so that I could tell the grandchildren that what I was doing was based on legal advice. One of the tricky things about your situation is that whatever you do with the portion of the Estate going to the grandchildren, there is the possibility that at least one of them could try to claim that they were entitled to more than you'd given them.

When speaking to someone one I would:

• Check if there was anything else I needed to do in relation to the Will that can't be found / is thought to be destroyed (it sounds like you've already done things to try to find it)
• Ask about the impact of a formal adoption of the grandchildren  and what you should/could do to determine if a formal adoption took place and when that happened.
• Ask what options the grandchildren would have if they wanted to dispute the decision about what they were entitled to, and what action I should take as the Administrator of the Estate to allow time for them to raise any dispute.

Once I'd done that, I would write to the grandchildren and say:

• I've taken legal advice and been told that under the rules of intestacy the group of five grandchildren are/aren't entitled to a share of the inheritance (delete as appropriate, according to what I'd been told)
• I am intending to divide the estate in line with that advice
• If any of them have concerns they should take their own legal advice and let me know by a specified date (Date determined by the advice I'd been given)

I then wouldn't make payments to any of the grandchildren until that deadline had passed.

Best of luck with this.

natches

thank you all some really good food for thought 

my niece the one who is still part of the family works for a solicitors so I might give her a run down and she might be able to get some advice and 25% discount as I have to protect myself and she will have a interest as it will cut into her half .

the stocks people sent me some paperwork seems that they don't need probate but as i still need it for the city council probate for letters of administration will still be required 

the pension I won't put on the probate as they haven't even given me a figure and my dad was over 75 tax will get took of it from the source ,this is what the pension web page says about tax 

could the deceased right up to their death have signed a binding "nomination" which obliged the trustee of the pension scheme to make payment nominated by the deceased ?

the answer is NO its the trustees decision as to who receives the death grants/benefits

was it the trustees discretion to choose who should receive it 
answer YES 

so the pension is in trust and not part of probate is this correct ?