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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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If a person dies without a will, has two adult children, that

Customer Question

If a person dies without a will, has two adult children, that are equally within their rights to claim any estate. Can one of the children legally claim the estate for themself ?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I ask if the person in question also has a spouse please?Do they have any other children besides the two mentioned including any adopted children or predeceased children (but not step children?)
Customer: replied 2 years ago.

Hi, It was my mother who died without a will, she has no present spouse or partner. There are no step child. My brother and I are the only people who can claim the estate. We had an older brother who has died, he had no children or partners. I was given letters of administration so I could buy my brother out. He wasn't happy with my offer. So we agreed, he would fix up property to make it more valuable then sell it, but he hasn't done enough and has left to go and live with his girlfriend off and on. He doesn't help with bills. I dont want to go to court to force the sale of house, for cost reasons & I might not win, so I thought I could claim the esate myself, use my money to fix it then sell it then split the money with my brother. My fear is he will bring his girl friend in house to live. I asked my lawyer if I could claim the estate but he told me he can't advise me in the capacity of a beneficary only in the capacity of an administrator. Thank you, Suzy

Expert:  Joshua replied 2 years ago.
Thank you very much for the above. May I clarify that you act as administrator on your own rather than with your brother please?
Customer: replied 2 years ago.

yes

Expert:  Joshua replied 2 years ago.
Thank you. if you act as the administrator, you have a legal right to deal with the estate on your own though your brother has a right to make an application to be appointed as a joint administrator at any time.As administrator, you can make a decision after the property though in practice it is sensible to where possible obtain agreement from other beneficiaries because you can be personally liable for any loss that the beneficiaries can prove you have made. However, you do not need your brothers consent if you wish to sell the property but by proceeding without his consent, you would need to be very sure that you can demonstrate that you have not sold the property for less than its market value so it would be wise to obtain at least three valuations from estate agents and obtain written advice in respect of any offers you accept.It's important to note that as an administrator, you do not have to maximise the value of a property; your duty is to preserve the estate which means that you have to obtain a fair value for any assets in their present condition and state. There is no requirement on administrator to improve the value or maximise the value of an asset before selling it and the beneficiary cannot claim against an administrator for loss of failing to do so.Dealing with your specific question, your brother would have an equal claim against the estate alongside you and therefore if you sought to claim the estate yourself, you could and most likely would find yourself subject to a claim from your brother for his share of the estate at some point in the future. There is no limitation period on how long he has to make such a claim so there would be no point in the future at which you could feel safe from such a claim arising so it is not a sensible thing to consider doing. there appear to be two principal options available to you for dealing with the property: the first is to simply sell the property as it is to a third party and then divide the proceeds equally between you and your brother deducting from his share any expenses and payments which you have contributed towards the property where he has not so as to reimburse yourself for any expenses and costs you have incurred on the property or estate over and above him. you are entitled to be repaid such costs and expenses for monies are divided between you and your brother. The other option would be to make an offer as you did for the property (obviously it would be for 50% of its market value to reflect your share) and you could also factor in estate agents commission that you would save by buying it yourself into your offer. If your brother refuses to accept it, then you can consider proceeding on the basis of obtaining three valuations from estate agents and making an offer for the average of those valuations. For additional safety you could instruct estate agents to market the property for a period of say 3 to 6 months in order to demonstrate that there are no higher offers than your offer so as to enable you to defend against a claim by your brother those you paid less than market value for the property. Your brother could also course be invited to make an offer for the property in the event he is willing to offer more than you. Having fulfilled the above, you could decide to proceed with the transfer of the property to yourself paying into the estate money for the other 50% share of the property and then divide the estate between you both. If you decide to proceed without the consent of your brother, ensure that you keep written records of all correspondence and valuations in respect of the property in order that you can show that you did take steps to ensure that you paid a fair market price for the property in the condition it was in. This will enable you to defend any claim that your brother may attempt to bring in the future. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Customer: replied 2 years ago.

Hello, If I did claim the astate without my brother, I don't mind him trying to get his half later on, that's what the plan is. What I'm worried about is, if I start putting money into estate to make the house more valuable - using up my money, then he decides to live in that house in the furture. The situation with my brother is not good. You said I had every right to sell the house, but what if my brother refuses to leave. It seems my brother is very difficult and although he said he wants to sell the house he might change his mind after my money has gone. Can he make a claim to come back and live there after I've fixed it ready to sell it ? This is my night mare. If a will apeared out of the blue after I'ved claimed the house and put money into it, how would I be ?

Expert:  Joshua replied 2 years ago.
There is no need for you to improve the property as administrator. As above the duty is to preserve (i.e maintain) not improve. He can make no claim against you for failure to maximise or improve estate assets.I am sorry I had not understood your brother was actually living at the property - you wrote earlier that he had left to live with his girlfriend so I understood that there was no one in the house. My apolgies for the misunderstanding. As administrator you have authority to give him notice to leave the property though of course he could attempt to resist this by applying to become a joint administrator - it depends how sophistiated he is in terms of understanding what he can and can't do. As administrator you are the legal owner (this does not mean you are entitled to all the money the house represents - this is provided for by the will) so you can control who has access to it. If he is living in the property but dos not pay rent he is entitled to 28 days notice to vacate failing which you can apply for a possession order from the county court.I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.
Customer: replied 2 years ago.

I can't charge him rent surely ? I understand that I don't have to improve the property, we have agreed to do that so we can both have full value of the house. My brother is hopeless at looking after the property and doesn't pay bills which is why I have now decided to take on the task of improving it myself. My worry is that he will make a claim to come back there to live after I've claimed it and poured money into it. Another worry is that a "will" will appear out of the blue. How would this affect me if I've claimed it and started to improve it. Sorry I didn't clairifly my brother and I are living here in the house that our mother owned when she was alive. Another thing, my brother could ask for coucil tax benefits as he is on Job seekers allowance most of the time but he refuses to ask for that benefit ! I have been paying his coucil tax since 2010. I'm really at my wits end. Suzy

Expert:  Joshua replied 2 years ago.
I would be delighted to continue to assist. I should be very grateful if you would kindly click a rating for my service to date. I will be very happy to continue to assist with your follow up question without any further charge. I look forward to hearing from you.
Customer: replied 2 years ago.

A very helpful, informative and pleasant service and is easy to excess. I would highly recomend this. It has taken away alot of the worry involved with legal matters. Thank you, Joshua

Expert:  Joshua replied 2 years ago.
Many thanks. Would you like me to deal with your last question? If I can assist further I would be very happy to - there should be the opportunity to click to submit a service rating.
Joshua and other Law Specialists are ready to help you
Expert:  Joshua replied 2 years ago.
Many thanks in deed. Would you still like me to deal with your above final question?
Customer: replied 2 years ago.

Hello, If I do claim the estate without my brother also claiming, I know he can claim at any time for half the value, I'm not worried about that. Does he have any right to then live in that house, or stop the selling of that house. This is the main thing. Also the house is falling apart, a kitchen that needs gutting, a boiler on the blink, leaking roof, a door that cant shut thats lets rain in, broken guttering that is causing subsidence, our alley way that the public has a right of way is dangerous and someone could trip up and get hurt if not corrected. My brother knows about all this and doesn't really care nor does he have a job to be able to pay someone to fix it. Surely this is reason to either force the sale or me to take ownership solely then latter split the sale. I cant live with him any more. Also he has a hording problem, the house looks like a warehouse filled with boxes and the garage in filled 6 ft. high with stuff he cant part with. It's a fire hazard. If the garage caught fire, nobody could walk in there to put it out, it's completely filled. I need help to get away from him. Suzy

Expert:  Joshua replied 2 years ago.
As things stand he has no right to live in the house without your authority as you are the sole adminsitrator. If he does live in the house on his own he is liable to pay an occupation rent for his occupation (half the market value of the rental value for the property).It seems to me it may be sensible to sell the property at a market price as we discussed above and if it is a project you wish to take on make and offer for it in its current condition using the above approach so you can demonstrate you are paying a fair price and if your brother wishes to offer more and can afford it which I assume he cannot do. At least that way if you do decide to take it on as a project you will take all the benefit from it whereas as things stand, it seems to me you will be doing all the work and putting in much of the money only to then share half the benefit with your brother.
Customer: replied 2 years ago.

If my brother can become an administrator then I cant charge him for rent can I ? The problem is his plans might be to just stay there. He doesnt want to sell it at the market value nor does he seem willing to clean and fix place up. May 3rd I emailed my brother and told him to stay there in Italy while I fix the place up to sell, I got no reply ! He got back from Italy 2 days ago. He just sits at his computer, nothing is getting repaired.

Please can you tell me if I claim the estate, can I throw him out while I fix the place and will he have any right to come back to live in the house. If I have to pay him half the value, I dont mind, I just dont want him to be able to stop the sale of house or come back there to live.