Another Helping Hand With A Will

Xbigman

My father died without leaving a will and I was the administrator of his estate. The solicitor I spoke to stated that under the intestacy laws myself and my brother had to split everything equally unless we both agreed otherwise.

The OP must find out who the administrator was and what solicitor was used (its possible a solicitor was not used but its unlikely). This can be found out through the probate service as the probate forms would need to include these details. The next step is to ask whoever the administrator was why your parent did not get their share. They should also make the solicitor used aware that there is a problem.

My understanding is that the administrator(s) (which could be more than one person) are liable if they have not followed the intestacy laws.
Contact the other child who did not recieve their share. If solicitors get involved splitting the costs in half will help a lot.
Regards



X

Willman_Rodders

Unfortunately in my line of business I come across these events on a fairly regular basis.

The administrators should have distributed the estate equally between all 12 children; not to do so means that they have failed in their duty.

I have been looking for a definitive statement within my textbooks on the topic and whilst I can find a statement confirming that if an executor [of a will] made this error (subject to a number of conditions) the executor is personally liable for making good the mistake, (and cannot ask a beneficiary to return what has been given to them in error,) I cannot find such a statement concerning an administrator. However I am sure the same rules apply as the administrator (the person who sorts out the estate of a deceased person who failed to make a valid will) is a personal representative who holds the deceased's estate in trust (Sect 33.1 of the Administration of Estates Act 1925) and by not distributing the estate in accordance with the Intestacy rules will be in breach of trust.

The distribution of the estate would appear not to have been done correctly. And, quite rightly, those 'short changed' will feel aggrieved. However can I urge caution before all sides start fighting. If the administrators are proved to have failed in their duty (and by the sound of things they appear to be already aware of this) will the involvement of solicitors rectify the position? Will taking them to court achieve anything? Will the solicitors acting for all parties get richer at your, and the estate's administrators, expense? And what will be the effect on the family? Sometimes, even though those 'short-changed' are legally right the remaining family see them in the wrong ... 'Why should they benefit, they were abroad.' 'They weren't a part of our family; they left us to look after dad in his dying years' and other divisive comments and thoughts are often expressed. Too often I come across families torn apart by rows over money, chasing what was rightly theirs in law.

There is a couple of lessons here.
1. Everyone should make a will in which you appoint an executor who you can trust explicitly to distribute the estate as you would wish (If you don't make a will then the law sets out who should be the administrator - but anyone of the children could fulfil the role in this case);
2. Not making a will can cost the deceased's estate a fortune as the administrators have to try and locate the beneficiaries who may be spread around the world. A simple clause in a will, allowing the executors of the will to pay out to traceable beneficiaries, can save a fortune.

Hope that helps.

Rod

AMILLIONDOLLARS

Thanks Willman

I will certainly pass your comments on. but I suspect that your cautionary words will not be heeded in this case. beside one of the party could do with the money, they are in ill health, and virtually on the bread line, so it would have been a god send for them.

AMD

Featherflick

My Aunt died last November and I was aware of the old will which left £150,000 to my mother (her sister) £150,000 to my 2 children James and Rebecca and £150,000 to be divided amongst all the people that she had worked with over the years and her friends. Recently my children received letters advising of a £2,000 legacy each that she had left. Upon reading a copy of her will it states that once the named people had received their small quotas, eg my children etc. the remainder of the state to be divided between my mother (now deceased in 2003) and the will was written in 2002, and my two cousins (neither of whom had much to do with her until 5 years ago. The main one is a barrister and obviously had her change the will to make him and his brother 2 main beneficiaries, plus my mother. Am I right in saying that as an only child I am entitled to my mothers' third share of the remaining assets as her next of kin?

Willman_Rodders

Hi Featherflick,

You will need to read the will to see if it states that should your mother have predeceased your aunt then your mother's children 'take' by substituton.

There is no automatic assumption (or right) that you take by substitution. If no specific clause is included in the will to this effect then the gift to your mother will 'fail' by virtue of her predeceasing the testator, and her share will be shared equally between the other beneficiaries.

On a technical point, Section 33 of the Wills Act 1837 (as amended) does make provision for the automatic substitution of children or remoter descendants of the testator. So had the deceased been [say] your grandmother (as opposed to your aunt) then the share your mother would have received from your grandmother's estate would automatically have been passed down to you by substitution (unless the will specifically stated otherwise.) - because, of course, you mother was a descendant of your grandmother. You are not a decendant of your aunt.

In terms of your comment ...

and £150,000 to be divided amongst all the people that she had worked with over the years and her friends

if that was literally how the will was worded then that would have created huge problems for the executors identifying just who was to benefit; I suspect that that clause/gift would have failed for uncertainty - so her will probably needed to be redrafted.

hardpressed

Whoever dealt will the distributions of her assets should have applied for latter's of administration if there was no will. When my mother-in-law died intestate her two children had to fill in a form detailing all the family, these had to go to the Probate office, I think, and letters granted before the bank etc would release any money. If those administrating her affair gave the Probate Office, or whoever deals with these things, false information they will be liable to repay the money.

Featherflick

My aunt did NOT die intestate. Most of the replies are about folk who died intestate. In the current will unfortunately, it stated that if any of the main 3 beneficiaries predeceased my aunt then the remaining beneficiaries basically share her third. The painful fact is that, for 27 years neither of my cousins had contact with my aunt, who was a spinster when she died, and as she was close to my mother (she was 8 years older and brought my mother up like her own) I was virtually brought up as a very "close" neice who accompanied her on holidays, together with her long-standing partner of 38 yrs and in the latter years, when she was unable to go to the shops, I ran her errands and cooked an evening meal for 18 months for her, getting her undressed and ready for bed, together with the help of my teenage son (who had a legacy of £2,000 left together with my daughter). For some reason when she was hospitalised and latterly taken into a home, my cousin (who worked for a law firm) had her make a new will that took my children out of the equation and re-wording the part whereby Mum inherited one third of the remaining estate. It's all very sad that my cousins were totally unaware of how close we were to my aunt, as they were working abroad or just not in contact, and I feel very bitter that they have ended up with half each of an estate that totalled £571k. They say money goes to money, I hope they enjoy it, because I am the happiest I have ever been in my personal life so I can move on and not let it eat away at me!

jonesMUFCforever

To be honest it doesn't sound like it.