Death without a will and co habitation

[RonaldMcDonald]

What happens nowadays if you die without having made a will and you were co habiting?
This has happened to my friend.
He has made financial provision for his children but has made no new will since he started to co habit with his new girlfriend
She says that she gets 2/3s of the money and the children the rest split between them
Sounds a bit unfair as his kids are young

Any ideas? She has called the insurance co to tell them she is the next of kin.
Help if poss would be v gratefully received
Ta

Just curious - what were the circumstances of the death? Was it sudden?
In any case - she has her own home which she was presumably able to pay for before the relationship, there are no dependant children. If she's in difficulties now then she will need to go back to whatever she was doing before the relationship. She's an adult, she can do that. The children have no option to provide for themselves and at the moment the burden of raising them is falling only on their mother who now has to do the work of two parents. Not only do they have a legal right to whatever money there is, they have a moral right to it too and don't let her try and tell you otherwise. I CAN believe somebody would try and steal from children. People are greedy and horrible much of the time.

As a widow, I have some sympathy for the girlfriend - she has just lost someone she presumably loved, all their plans for a shared future are now over, and her life has been changed. But the law is the law, and she is an independent adult who had no legal ties to the deceased, so both the will and the intestacy laws mean that the dead man's children should inherit. This is a very good object lesson in why everyone - but particularly anyone with children - should make a will and update it regularly if their circumstances change.

Good luck with what is probably going to be a tricky and upsetting few weeks sorting this out, OP.

She has asked that I step aside as executor
She has asked that she is afforded the dignity of dealing with his estate
I can see her point

She claims that the insurance company have told her that as the policy was a 'death benefit' it falls outside of his estate? That it is unaffected by his will. They have apparently also told her that the will has no real standing as it is old?

Could this be true or could the advice from the insurance company be this poor?
Should I step aside? god

No don't step aside. She is clearly both grieving and grasping. She may be grieving, but she is not dealing with this with any "dignity" -- she is aiming to steal from the deceased's children.

What can you live with? What do you feelin your gut? because that's your moral compass, and throughout this thread it seems to me (reading what you've written) that you would feel you'd acted immorally if you handed it over to her.

She's given no indication of being able to deal honestly & fairly or with dignity.

If she feels she has a claim on the deceased's estate, then there are ways she can do this via the courts. But other than that, the last will stands -- doesn't matter how old it is. That is completely irrelevant.

The law is very clear about this.

And I speak as a widow -- but that was a long tie ago, and as we had a child, I insisted on being married. There is no such thing in law as "common lawwife"

No, you shouldn't step aside. You need to protect the rights of the children and she is trying to take their lawful inheritance away.

I was executor of my parents' will but handed the lot over to a solicitor to deal with on my behalf. I suggest you do this ASAP.

Then you can tell her it's in the hands of a solicitor and they are dealing with it. And that she must speak to them not you.

Get legal advice ASAP.

DO NOT STEP ASIDE!!!

As many pps have said - if he had wanted her to have the benefits of being his wife he should have married her or changed his will. He did neither.

As for "She claims that the insurance company have told her that as the policy was a 'death benefit' it falls outside of his estate? That it is unaffected by his will. They have apparently also told her that the will has no real standing as it is old?"

It may be true that it falls outside the estate, however the policy WILL state who the beneficiaries are and there is NO WAY the insurance company should have let her change them (if they really have). However as executor of his estate you are the one with the power to contact them to find out what is going on - they shouldn't even have spoken to her about it.

And it is totally irrelevant how old the will is - unless he has married in the interim (at which point all wills become void) it is still valid. Even if it's 50 years old.

She is either confused or lying here...but it doesn't matter. Your job is to make sure that his expressed wishes (in the will) are followed. GET A LAWYER NOW to make sure she can't get her hands on the insurance/anything else. If you know about bank accounts contact them as executor and tell them what is happening.

Don't step aside. She is grasping at straws if she thinks that by removing you as executor she can somehow get the law on her side.

The things she reports the insurance company as saying are complete nonsense - a will does not lose its standing because it is old, and afaik unless she is named as a beneficiary of the insurance policy, it becomes part of the estate.

If they had joint bank accounts/investments/property etc then she may well be entitled to those - normally when one holder of a joint account dies, the account automatically switches into the the name of the surviving account holder, likewise with property owned as joint tenants (though I think this can be challenged if there are dependents who may lose out from this - you'd need to ask a solicitor) - but anything that was in his name alone is part of the estate.

It is your responsibility as an executor to make sure that the will is carried out and the money goes to the rightful heirs, which presumably means the children. Do you have a rough idea of how much money is involved here?

This is obviously not going to be fun, and you may need to get a solicitor to deal with her rather than doing it yourself and being subject to emotional blackmail.

The insurance does fall outside his estate yes and will be distributed as per who he nominated officially. However the trustees have discretion, and if he left her all his death in service benefit, but left no provision for any dependent children, the trustees can ignore his nomination in favour of the children.

The will is valid and the insurance company are talking bollocks.

Can you allow her to deal with his personal effects in the house, maybe suggest she finds one or two items for the children to have? Assuming they have no monetary value of course....

Other than the death benefit is there anything else in the estate? Savings? banks accounts? Property?

Either the life insurance company is seriously inept or she is lying. A will never expires. If he never made a newer will, then that one stands. She either produces a legally binding new will that cancels the old one or....

You can designate people on life insurance policies to receive the money, "written in trust". He may have done that, but if he hasn't, then it should fall into his estate.

I personally don't think that you should step aside. I think that you need to protect his DC. He appointed you as executor for a reason and he never changed his will.

If she is not protected by his will, then she only has him to blame, nobody else.

She is talking a load of rubbish. You can make a will 90 years before and it is still valid if not revoked.
Secondly it is possible the life insurance were written into trust for her - most employers ask the employee who they want to have benefit - I think one of my adult children put me down for example and I have written my pension into trust for the children if I die which means that falls outside my estate for inheritance tax. So it is possible her boyfriend write the life insuance proceedings into trust for her but as executor you will need to see the document.

You could go to prison if you are an executor of a will however old the will is and do not do the right thing.

She won't get to be an executor even if you do step down. If all the executors named in the will (including you) renounce then normally the beneficiary entitled to the residue of the estate would apply to be recognised as the administrator.

She's not a beneficiary at all. She's not entitled to the residue of the estate. And she has consistently attempted to act in a manner imcompatible with the legal rights of the actual residuary legatees. I can't see that she has a chance of being recognised as administrator even if you were to renounce, which I sincerely hope you won't.

The death benefit does normally fall outside the estate (so that's not your problem, at least), but she can't just decide that she gets the bulk of it. It may all get rather messy. The children's mother needs to contact the insurance company to make them aware that your friend had dependant children, and might benefit from consulting a solicitor.

I don't believe that the insurance company told her anything of the sort about the will, though. If he'd been married to his ex, named her as a beneficiary in the will, and then divorced, then the bequest to her would be invalid -- but that would be because of the divorce not the age of the will. And they weren't married. And even if they had been and the old will was invalid, the new gf wouldn't get anything as it would go to his children rather than to her.

Am I the only one astonished that the insurance company were prepared to be so conversational with the gf without paperwork? How unprofessional!

OP, as there is no new will, maybe try and see being an executor as a last act for a friend? He trusted you to carry out his wishes, so do not worry about doing so.

I could well be wrong, but I also didn't think legally you could be an executor of a will of which you were the main beneficiary?

(the benefits may have been written into trust for a named beneficiary, which might have been her or might have been his children. Or I think it can be written into trust for beneficiaries to be determined by the insurance trustees (I'm hazy on legal details, though). It would be unusual for it to be allowed to fall into the estate as that would make it liable to inheritance tax etc.)

Solasum, you can be executor of a will of which you are the main beneficiary (in fact that's the most common position -- estate left to spouse who is also executor, or estate left to adult child(ren) who are also executor(s)). You can't be a witness to a will of which you are a beneficiary.

I was the executor of my DH's will and I was the sole beneficiary; MiL is currently acting as the main executor of my late FiL's will, of which she is the main beneficiary. I don't think there is a problem with that.

What you can't do is act as witness to a will if you are a beneficiary, even a minor one.

x-post with tortoise

Ah yes I did know that. Thank you both

Please don't ask your friend to consider splitting her share with new gf. She is now solely responsible for care and upbringing of 2 children by herself. She will incur personal cost as a result as the lone parent.

This must be horrible for you and I really feel for you (I was executor of a contested will) but your job is not to decide what is 'fair' for new partner, it's to distribute the estate in accordance with the wishes of the deceased.

My goodness, fairly abusive phone message from current partner. I can completely see that she is furious over this. I get it but I can't change it.

Does the payment fall outside the will and is it not passed into the estate by the trustees of the Fund!
How do the trustees make a decision to pay it to someone not nominated by the deceased or mentioned in his will?
This is beyond comprehension. Sorry everyone.

So the gf is saying that he hadn't nominated anyone and therefore it is up to the Trustees of the Pension Fund to decide
They have already decided apparently , given that she was cohabiting with him, to give approx 2/3 of the payment to her.
They are happy to give the rest to the children.

This makes up a large part of what we/he would have considered to be his estate. This was something we actually discussed re life insurance coverage 15+ yrs ago as he thought I was over egging mine and I didn't really understand pensions at that point. What a blardy mess.
His gf says he hadn't made a nomination so she has nominated herself but I find this hard to believe.

It does seem that he simply didn't change his will or any provisions for his new partner.
I could rationalise this and say she is a healthy, working woman and they are just kids but I think he must have though she'd get something.

Will the kids have to fight to get money from the fund or will it come to the estate to be shared?

Thanks beyond thanks

Goodness what an awful situation, how long has he been with his gf? It does sound like she's behaving terribly but I would imagine he wouldn't want to leave her bereft. Do they own a house together?

Perhaps the gf is classed as a dependant of his as they lived together?
This might be the reason why they will pay to her if outside the confines of his will