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

It depends who is nominated - you could nominate your housemate if you wished. My unmarried brother has nominated me, and that also falls outside his estate.

In this case, it would appear that he has not nominated anyone, or the nomination is considered out of date. The trustees need to consider the situation of his children first, though.

Have you spoken to a solicitor yet?
I think you need to and fast.

Not surprised to see the gf is angry - if she was slippery enough to try to snaffle most of your friend's estate, then she is going to be angry if she sees all the money slipping from her grasp as a real executor has come along and knows enough not to hand her all the money.

If the gf owned the house they were living in and she has her own business, then chances are she is taking money from the company as wages or director shares etc (I'm guessing that it should be possible to get a copy of the latest set of accounts from company house to to get relatively recent figures). In which case:

• either your friend was paying rent (which presumably she can prove from her tax form as she would be declaring it- and if she didn't declare it then by doing so now she could lay herself open to having to pay back taxes on it)
• or he was paying into the mortgage (which raises issues of should any part of the property be in the estate) - surely that would be classed as effectively rent rather than supporting her (although it is obviously very nice when your mortgage gets paid into by other people!)
• or he was paying bills in lieu of rent or mortgage payments - but it would have been in lieu of those rather than because the gf needed money - or if she did it would have been because she was spending it on other stuff, assuming that the company accounts show that she was getting some money from her company). Again - surely that's living together stuff rather than supporting her - in the same way that he would be paying if he was a lodger rather than her partner.
• or he wasn't paying her money - which should be easy to see from his bank account details - in which case he wasn't supporting her money-wise and she doesn't have a claim as being a dependent now. Likewise it should be easy if he was paying her to verify that from his bank account - if it was bits and bobs in cash or irregular bank payments then again I don't see how she can use that as evidence that she was dependent on him.

I'm finding it quite hard to think given the circumstances of how she can prove that she was dependent on him without opening other doors that don't have good consequences for her. I definitely think that she needs to prove her dependence on him - you could easily argue to the insurance company that he was more dependent on her; if he was living in her house and paying reduced rent or bills or however they worked it compared with what you would typically pay as a half share rent on a similar property then he was benefitting from living there rather than her being dependent on him!

I would be throwing all sorts of spanners into the works (not that I'm legally qualified in any way!) - but I would make sure that the insurance company knows that you will be talking to their professional body because you are already unhappy about the unprofessional way they have acted with regard to this policy and that the policy holder's dependent young children are losing out to the grasping immoral girlfriend who doesn't have anywhere near as big a right to the money as his children do. I would also be telling them that as you are one of the executors you had a long conversation with the deceased when he was in the process of setting up his will and insurance policy and he made you very aware that the reason he was setting it up was to provide for his children should the worst happen to him.

Sorry long post and I've juts thought of a couple more things...

If the gf claims she was dependent on the ex then maybe your friend should also claim that she was dependent on him too - if he was giving her child support for the children regularly then I don't see why she shouldn't have a proportion of the money too in lieu of child support... she would be just as entitled to it as the gf if she has been getting regular money from her ex if they are talking in terms of dependents!

Would it be worth your friend also ringing up the insurance company and talking to them:
-firstly to see exactly how easily they talk to her and whether or not they will do anything on her word over the phone
-secondly to stake a claim on some of the money to increase the amount that is in the family pot for the children (even if their share is put into trust for later, this would at least be money that could be used towards food, bills, etc)
-act as another reminder to the insurance company that they if they give the majority of the fund (set up before he even knew of her existence, in order to provide for his dc if anything happened to them) to his gf then they are not very fit to be doing their jobs and that she will be making a claim for a bigger share for her children.
-also they might be able to tell her if she was once listed as a beneficiary of the policy - because you never know what the gf has said about her in order to get herself on the policy (I know that it's possible to nominate people to be beneficiaries that aren't family etc when you set the policy up but it seems awfully strange to be able to nominate yourself to get the majority share when you're not actually family without needing to prove anything)
-find out if it really did go into a trust (so surprising that nobody named when it was set up given that he had dc at the time) or if it didn't and therefore goes into the estate and therefore the trustees shouldn't get to decide anything

On a separate note...
If you want to get a kick in the teeth to the insurance company and you don't mind using the press (identified by initials in the depths of a supplement not big sad-faced pictures in the main part of the paper!) the Daily Telegraph paper on a saturday has money section that has a lady that investigates when people think they are being treated badly by banks, financial institutions, insurance etc etc. She's at: www.telegraph.co.uk/journalists/jessica-gorst-williams/

You might find that a letter saying that is there anything she can do to increase the amounts for the dc and to express shock/horror at the ease at which the gf was able to change things, and the insurance company going along with it without even bothering to check with the executors etc etc might lead to her knowing what to do, ringing them up and sorting it out for you...

Well, actually, the OP only has the girlfriend's word for it that these things have been altered. Also, it could be that they told her they were unable to talk about the deceased's case specifically, but then spoke in general terms about what might happen in various circumstances. The girlfriend might then have extrapolated that general information and adapted it to suit her own ends.

If the insurance policy was set up to benefit his children, before the deceased even met his new girlfriend, how could she possibly stake a claim on it now? Let alone for the majority share of it?

i agree with clam that the gf is almost certainly using generic information to extrapolate her own position. I think it extremely unlikely that payouts other than in accordance with the lodged statement of wishes will be made without a meeting of the trustees, or a subcommittee. this doesn't happen that quickly and certainly not within a telephone call.

One point : dh Data. Protection Act only applies to living people. Once a company has been notified of the death of their client/customer they can give details to anyone. However, good practice dictates that they must verify the deceased is actually deceased and they cannot give out information that also related to someone else who is covered by the DPA.

I would keep repeating "I have a legal obligation to ensure the estate is settled as per X's instructions" and not discuss anything further with the girlfriend until has calmed down.

I would also not take her word for anything.

The other thing to bear in mind is that people answer the question asked. So if the girlfriend says "I should be named on the paperwork because I was living with him as his wife" but means "I want it to be true that he made provision for me because I was living with him and in my mind that's as good as married" the insurance company will answer based on a scenario where she is either on the paperwork or where they take at face value she was his wife.

Op you are doing the right things. Do not give up unless you really feel you cannot act in the children's best interests or it is compromising your own family life.

His children or the person named on the current Will are next of kin and executor.

She sounds grabby and untrustworthy and ex should take over if only to protect her childrens interest. If there are surviving parents they or siblings should be next of kin, although she also has that option if others agree I think. That doesn't mean she gets his money though.

The main point is that he died with a Will, and that is what the partner needs to follow. It might make sense for her to be executor if she has access to paperwork, but she has to follow the law.

Speaking from experience, not as a professional.

I have been googling, and found the following information, the basics of which I have written. But please read the information in full.

www.advicenow.org.uk/data/files/lt-wills-2010-72.pdf

As executor, not only is it up to you to deal with this, but you are responsible for what happens to the children's share until they are 18. Were you aware of this?

Because they weren't married, you and the other executor need to be dealing with all of this.. And even if there was no will, like she tried to claim and told a load of bollocks about, she still would not be able to take over. Sorting everything out without a will, would either be the state or his family. If he was married to your friend, it would be her. If not his parents, siblings, uncles, cousins, depending on who is alive in his family.

As executor, it is also down to you to sort out the funeral.
Have you applied for probate yet? You need to jump on this, without this you cannot deal with the estate. So this asks the question of how the hell is she doing any of this. Or you can instruct a lawyer to do this, and the money comes out of the estate... Anyway, once a million bits of paper work have been done, you get a bit of paper called grant of probate.. This shows all the companies, you are dealing with everything. Once you have gained every single penny that he owns, you pay off any debts. Then the rest gets distributed according to the will. You cannot do as she is suggesting, because the legal heirs to the will can come back and sue your arse off. If you don't pay the debts from the estate, creditors will come after you.

The will can be changed by negotiation and agreement. Threatening, and being a nasty, grabby, bullying bitch does not come under this. Because the children are under 18, you cannot do this either. It can only be changed by court...

Now, how long was she living with him? This could be where she is getting confused. If over 2 years, or relying partially or fully on him, she could be able to make a claim. But how she is doing it is wrong. This falls under Provisions for Family and Dependence Act 1975. However, she has to write her request stating why. She has to take legal advice and she has to pay for this.

Does the executor have any right to get the deceased's paperwork from his home or is the gf allowed to withold it - and any other possessions? Because otherwise isn't there a chance that the executor wouldn't be able to do everything they needed to do without them?

DO NOT STEP ASIDE!

This woman has lied and lied and bullied to try and get hold of the money from the estate. There is no way she will deal fairly and equitably with the estate and in the best interests of the children.

Jeez when my DB died the gf just took over, we were glad she did in some ways and trusted her at the time, but have been completely sidelined all the way. She wouldn't have touched the dcs rightful inheritance like this unbelievably greedy woman has, but nobody but the children have been offered anything either.

People DO take over and it becomes hard later on to question if you feel things should have gone differently. You have to act quickly.

Laws are made for a reason, and if she wanted rights over his estate they should have married or made a Will.

And yet, still we get posters on here saying how they refuse to get married "just for the piece of paper." It's a pretty damn important piece of paper in cases like this.

Also highlights that if you live with a cocklodger, make a will. In life they will have leeched from you, and in death they will leech from any children. Don't marry him. But make a will, and because of legal loopholes, not a diy one.

Re: her statement that he considered them married and so he believed she would inherit from him

It is true that some people do believe this common-law-wife fallacy
But you know that he did not, or he would not have bothered sorting out a will in favour of the XP and naming her as beneficiary all those years ago, he would have just assumed that his then "common-law-wife" would inherit.

But he did know all about the law and was careful to get all his paperwork in order
It would therefore be reasonable to assume that he would have changed his paperwork if he wanted to
So his original wishes still stand

I know you are feeling sorry for a bereaved woman, but you have been entrusted by the deceased as his executor, and as such you have to fight tooth & nail for the children's rights.

You have no reason to believe that he meant for her to get a penny

In my experience (parents' deaths), banks and insurance companies and the like won't tell you an awful lot without seeing the death certificate (real one, no photocopies) and a certified copy of the will, plus possibly also ID that you are who you say you are, and those details match what's listed for the executor. They certainly won't transfer any funds without that soft of evidence.

What was she thinking even trying to pull these stunts? It's very kind of you, Ronald to put it down to her grief. I'm sure she is grieving, but the cynic in me also suspects she's chancing her luck for the money. And that would make me even more determined to ensure the estate was settled as it was intended - and his children should be first and foremost in everyone's priorities.

Bloodyteenagers- out of interest, why not a DIY Will? What are the legal loopholes?

Of course she is grieving. Has there been a funeral yet? The costs of this of course form pârt of the estate, before we even get in to grabby territory....

The mother of his children has the greatest need both financially and emotionally. The new gf only has herself to look after. Grief makes us say and do stupid things, it might be that this was a blip and she will be remorseful and sorry later on. Try to be business like about it so as not to entrench bad feeling.

The loophole is the Provisions for Family and Dependence Act 1975.

Although the common law wife/husband doesn't exist. When it comes to inheritance, if you are living with someone for a minimum of 2 years and the person is supporting you, they die, you can make a claim. It's up to the court if they decide to award you a thing.... Wonder how many people actually realise this.

A none diy in the case of a cocklodger, because it's complex and a determined cocklodger will still want cash. Generally a diy is fine I would say, but in complexed cases, legal help.

*Disclaimer. Always get your own independent advice. Only from googling this scenario did I find out about the 1975 Act, so who knows what other loopholes are out there.

I think it is fair to support dependents even if not married. The Act is probably a good thing. Doesn't mean the new partner gets to be executor, next of kin and take the life insurance money though!

have the insurance co got back to you yet OP?
have you got a solicitor?

be strong, she's in the wrong.