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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33306
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My late partner's estate has gone into probate this month

Customer Question

Hi
My late partner's estate has gone into probate this month and his brother is acting as the executor but doesn't tell me anything. its a complicated matter and would appreciate some advice please.
Submitted: 10 months ago.
Category: Law
Customer: replied 10 months ago.
Richard left a will which showed his wishes and we thought everything would be straightforward but he left a number of debts and his ex wife is saying she will contest the will for maintenance payments for their 2 children even though Richard's name is ***** ***** the mortgage and she has remained in the house. their divorce was also very messy with the solicitor stressing that she should pay half the divorce costs and pay him the money back after selling a horse box lorry without his consent-leaving him with an expensive loan repayment. She never maintained these payments and I would like to know if she does decide to pursue her claim what is the likelihood of her winning (does it depend on the amount in the estate) and would the equity in the house and the arrangement to pay him the amounts back be taken into consideration.
Expert:  Clare replied 10 months ago.
HiThank you for your questionMy name is ***** ***** I am sorry for your lossI shall do my best to help you but I need some further information first.What was the extent of the estate and what were your late partner's wishes?
Customer: replied 10 months ago.
Hi Clare
I am not entirely sure, as I said his brother won't tell me anything, although I know Richard cashed in his pension of around 60-70,000 when he was ill. He was also due a death in-service benefit of £10,000.
There were debts to be cleared, but not sure how much? His brother is being very secretive.
As for Richard's wishes he left several cash gifts to family members (£7,000) cover his own funeral expenses ( around £4000) and then the remainder of the estate would be split equally between myself and his 2 children (50/50).
Thank you for your swift response. Richard passed away last March and his brother has been dealing with matters independently, although he has had some legal advice. Just not sure whether things are being handled properly.
many thanks
Alli
Expert:  Clare replied 10 months ago.
Hi
Was there ever a financial order within the divorce proceedings - if so what did it say?
Clare
Customer: replied 10 months ago.
I've found some papers with recommendations from his solicitor on but I don't think i've found a financial order.
Alli
Expert:  Clare replied 10 months ago.
Hi
Did he ever mention one?
Clare
Customer: replied 10 months ago.
The divorce was very messy and his ex very un-cooperative, so I can imagine the plan was to do one but I don't know if it happened or not. Can't find one in the paper work-is this good or bad?
Alli
Expert:  Clare replied 10 months ago.
It is neither so please do not worry too much.What is your major concern about the current position?
Customer: replied 10 months ago.
I'm concerned that his ex will contest and win and although she says its for maintenance, she will use it to fund her lavish lifestyle.( Richard purposely didn't leave anything in her name) He knew the money wouldn't be used for the children. I just hate to think of the injustice of it all.
I've heard that when the will is in probate, Jeremy will have to wait 6 months to settle the estate to allow her time to contest-is this correct?
Also can I counter contest with the equity in the house because Richard's name was still on the mortgage when he died (would he be entitled to claim that) and to claim the expenses from the divorce/recommendations which were made?
Its gone on far longer than I imagined it would and I would like some kind of closure now.
1 other question-when debts are left-what is the general rule on settling the debt when somebody dies.
thanksAlli
Expert:  Clare replied 10 months ago.
Hi AlliProbate is the process of "proving" the validity of a Will and his ex will indeed have six months after the grant to challenge it.However since she ill have the house, it is likely that the pension will go to the children, and the Will makes provision of the children in any event it is unlikely that such a claim would succeed - and even if it did the money would be held in trust for them and it would be up to the Trustees to release any funds as necessaryI am afraid it is only the Executor who can recover any monies owed to the EstateAny debts owed by the deceased have to be paid from any assets in the Estate prior to distribution.I do appreciate how much you need this to be over - unfortunately it is not unusual for matters to take this longPlease ask if you need further detailsClare
Customer: replied 10 months ago.
Thanks clare
When you say the pension will go to the children do you mean the children and myself as was Richards wishes?
I gave up my job to care for him when he was terminally Ill and this has impacted greatly on my financial security. I do have a temporary job now but I'm worried about my future stability especiallyespecially now I know how long this could take.
Would Jeremy have grounds then as executor to claim back the equity? Recover sexpenses. If his ex were to challenge does it have to be done legally through a solicitor?
Thanks
Alli
Expert:  Clare replied 10 months ago.
Hi
Most pensions do not come into the estate to be dealt with in a Will
Instead the Pension Trustees deal with the matter - and usually favour the chidlren.
Of course this pension might be different
Without substantially more details regarding what happened within the matrimonial proceedings there is no way of knowing what might or might not be recovereable
Clare
Customer: replied 10 months ago.
Hi clare
Thanks again.
R8chard had already cashed in his pension and so it was in his bank account already. Isn't this part of his estate?
His ex hasn't got a solicitor as yet and only said she may contest via an email.does Jeremy still have to wait 6 months?
Alli
Expert:  Clare replied 10 months ago.
HiIf the money is in the bank account then it no longer counts as "pension" I am afraid - it is just part of his cash assets so will indeed be distributes as your partner wished.The Executor needs to wait the six months to protect all of you from having to repay any of the monies.Clare
Customer: replied 10 months ago.
Thanks clare
Lastly could his ex represent herself or will she need legal representation? How is the 6 months monitored does she get a letter stressing the time frame she has to contest? Could she literally wait till a few days before to challenge?
Regards
Alli
Expert:  Clare replied 10 months ago.
HI
She can do it herself and it is up to her to know the time limits - but yes she can leave it until the last minute
Clare

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