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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My brother has just passed away and it just seems so unfair

Resolved Question:

My brother has just passed away and it just seems so unfair the advice that we have been given. Can you confirm a few questions for me. My brother had a partner and 2 children. His partner left him in August and returned in December for 2-3 weeks and left him again (taking the 2 children with her). They lived with her mum for this period. My brother passed away on 9th March in Hospital, he was only there for a day. On the day he died she couldn't wait to get back into his house, she hasn't moved back in but she is there every day and have slept there with the children on occasions. My father is my brother's next of kin due to the separation and is dealing with all the financial/death certificates/funeral arrangements & payment etc.
My brother was only 44 when he died, he has a mortgage of £69,000 which he had before meeting the mother of his children. We have been told that the children are his next of kin and everything should be left to them but they are aged 11 and 8 and because she is their guardian she can have control of everything!!! We want the children to have his pension etc which is only £15,000 and would like to possibly sell the house which is worth approx £120,000 leaving us with £70,000 which we would like to put somewhere for the children for when they are old enough to give them a good start in life.
His ex-partner got my brother into alot of debt and would waste this money immediately if she could get her hands on it. Is there anything we can do, it just seems to unfair as she left my brother at the most crucial time in his life and really didn't care about him. She destroyed him if i'm to be very honest.
Submitted: 2 years ago.
Category: Family Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Please accept my sincere condolences for your loss.

Joshua :

From what you say I understand your brother was not married to the partner you refer to. May I ask who has advised you that your brother's partner will have control over his estate please?

Customer:

Hi there, My brother was not married to his partner no but they lived together for around 12 years.

Customer:

The Bank he took out his mortgage with advised that because his ex-partner is the guardian of the children then his pension would be left for his children but she would automatically have control over this. We do not know where we stand as yet with Mortgage as yet.

Joshua :

Thanks. The bank is incorrect in what they have told you.

Joshua :

if brother if your brother did not make a will, the bank has correctly advised you that his children will receive his estate under the rules of intestacy between them as they reach the age of 18. however, their comment that his partner will have legal control of his estate as the children's Guardian is incorrect.

Joshua :

the non-contentious probate rules provide an order of priority in relation to who can act as administrator of your brothers estate in the event of intestacy (i.e. where he fails to leave a will). This order is as follows (I will not post all of it but only the part that is relevant)

Joshua :

NCPR 22.
(1) Where the deceased died on or after 1 January 1926, wholly intestate, the person or persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following classes in order of priority, namely—


(a)the surviving husband or wife;


(b)the children of the deceased and the issue of any deceased child who died before the deceased;


(c)the father and mother of the deceased;


(d)brothers and sisters of the whole blood and the issue of any deceased brother or sister of the whole blood who died before the deceased;

Joshua :

as your brother did not have a surviving spouse and his children are underage, the persons with the first right to act would be your brothers father and mother. If they are no longer alive or do not wish to act, the next class of persons that is competent to administer your brothers will are your brothers siblings of whole blood. Accordingly the right will fall to you and any other siblings you have to act as administrator of your brothers estate. Befor I go on could you kindly advise me whether you have any other living siblings of whole blood please and whether your brothers parents are still alive?

Customer:

Hi again, Yes our parents are still alive and I am his only sibling.

Joshua :

thank you. On that basis, your parents would have the first right to act as your brother's administrator. Because a minority interest arises under the terms of the intestacy rules (i.e. the estate benefits minors who have not reached the age of 18) the law requires at least two administrators to be appointed however up to four can be appointed if required. this is designed to ensure that money is left two children are safeguarded by more than one person so that the funds are not used for purposes other than the benefit of the children. accordingly, either both your parents can choose to act or one of them with you. if neither of your parents wish to act, then you can act but she would need to act alongside somebody with lower priority than you such as grandparents or aunts and uncles.

Joshua :

ideally, either both your parents would act with or without you or one of your parents with you as administrator of your brothers estate however none of you have to take this role if you do not want to. Those that take the role would be responsible for safeguarding the monies until your brother's children reached the age of 18 and which time they are entitled to it. Under the Trustee Act up to half of the money can be advanced to the children for their benefit before they reach 18 things such as educational purposes and welfare and so on.

Joshua :

his partner can claim maintenance from his estate for the welfare of the children as referred to above.

Joshua :

his partner may have a claim against the estate in her own right however if she had left your brother and was no longer in a relationship with him at the time of his passing, her claim in this respect may be prejudiced as in order to make a claim under the inheritance ( provision for families and dependence) act, she would need to demonstrate that she had been living in the same household as your brother effectively as his wife in all but name for the two years prior to your brothers passing or that immediately before your brothers passing she had been financially maintained by your brother.

Customer:

Wonderful, would there be any chance that safeguarding the children's money could be held for longer than age 18?

Joshua :

there would have been if your brother had made a will insofar as he could have provided for the trust which provided for a higher age for inheritance for the children however the rules of intestacy provide that the children are entitled to the money at the age of 18. regrettably, there is no way to alter this at this point. However in practice, whoever acts as administrator as we discussed above, will also be trustees in respect of the money for the children and as such will be the legal controls of that money. If you simply tell the children they will inherit the money at a higher age such as 21 or 25 for example, although the children could sue the trustees for the money as soon as they reach the age of 18, in practice, it is fairly rare the children to be sophisticated enough to realise they have this right let alone have the resources to carry out such an action.

Customer:

That's brilliant, thank you.

Joshua :

accordingly, it is fairly common for trustees to simply tell children they will inherit a higher age ( for example parents holding monies left in trust by grandparents and so on do this regularly) even though the children in fact have a legal right to the money at 18. If the children were to issue legal proceedings then you would officer wish to consider backing down because there is no legal right to delay giving them the money at 18 however as above, in practice there should be little difficulty in telling the children they will inherit at a higher age and in general children will accept this for the above reasons.

Customer:

If my dad decided to pay the rest of his mortgage and become the owner of my brother's property but allowed his ex-partner and the children live there free of charge (just paying the bills only). Could my dad then leave the house to them on behalf of my brother in his will giving them the right to their home when they are 25? If the mortage company allowed this?

Joshua :

it is important to remember that the administrators that decide to act do not become the beneficial owners of the property brother leaves. Accordingly, your father could not leave your brothers property to anyone has the right to the property already belongs to the children under the rules of intestacy as above. The administrators role is simply one of custody and safe keeping of the property until the children reach the age of 18 ( or such unofficial higher age as we've discussed above).

if however your father chose to pay off the mortgage, then the result would be that part of the property belonged to your brothers estate (i.e. the equity existing at the time of your brothers passing) and part of the property would belong to your father (i.e. the part that represents the amount he paid off on the mortgage.)

Joshua :

There would be no difficulty in your father leaving the part of the property that belonged to him under the terms of his will to whoever he wishes but the part of the property that belongs to your brothers estate as above would go to the children legally at the age of 18 ( or such unofficial Higher age as above)

Joshua :

once the mortgage is paid off, the mortgage company has no further involvement in the property and has no right to allow all disallow anything.

Customer:

Ok, thank you very much for all your help. I am happy for now and will be back in touch soon.

Customer:

Kind Regards

Joshua :

A pleasure.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me.

Joshua, Lawyer
Category: Family Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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