Ainu inheritance

[Shivvy1]

Hello,

I would like some advice re an inheritance issues and would love to hear peoples opinions.

My brother died 6 weeks ago and our mother last week. Her will states that her home should be sold and split between her 3 children.

Now that my brother is dead, do I sell the home as stated and give my brothers wife and children his share or just share it between myself and my other sister?

Thank you.

Section 33 of the Wills Act 1837 probably applies.
Your brothers' children automatically get his share unless something in your DM's will explicitly says otherwise.
The law says this specifically because it's normally the fairest way in tragic unanticipated situations.

Legally incorrect. Most competent will writers include reference to s.33 in the will so lay executors don’t get themselves sued into bankruptcy by giving the money to the wrong people.

Your parents did that for the sake of tidiness, but it wasn't strictly necessary.

I turn my gas hob off when it's finished cooking, but actually it has a safety feature that would turn itself off if I didn't bother to prevent disaster: that's Section 33.

Actually, it’s the other way around. Unless the will specifically says DB’s children don’t get the money, they automatically get their father’s share under s.33 of the Wills Act.

Yes it's strange that the Will doesn't specify - I wonder who drafted it.
If the OP was as much of a bastard as her siblings and didn't bother to check, it would be easy to assume that you just do what it literally says on paper and disinherit the grandchildren.

Completely wrong.

My Dad died prior to my grandad, so when grandad died my dad's third was split between me and my 2 siblings...my uncle was executor of the will and made it known he was not happy about this. He actually asked us to return some of our share for his children! We didn't!

If this happened in my family i would split regardless of what the will said 'doing a deed of variation' and would think very poorly of my sibling for disagreeing. I am assuming your brother and his children were not estranged from your mum here. If they were actively a family then it is clear she wouldnt have wanted them disinherited. If your sibling has children then flip this around and ask her if she had died would it be fair if her kids were disinherited purely because they lost their mother - talk about a double whammy. Not only have they lost their dad but they are being disinherited because of it. You and your sibling need to do the right thing here and fulfil your mothers wishes, changing the will if necessary to do so.

Probably one of those ‘will writing’ companies that charge a fortune for assembling a template that may or may not actually apply to the testator’s situation.

I think the lesson for others here (not OP as they have enough on their plate) is to go to a solicitor to get a will done and make sure it covers what happens if an intended beneficiary dies.

No deed of variation is required unless the will specifically says that if DB dies first, his children don’t get anything.

Legally, s.33 of the Wills Act says DB’s children inherit in his place (when inheriting from DB’s parent or grandparent not generally) unless the will says otherwise.

It is really important that if your late brother's share goes to his children (as I think it should) it should be placed in trust for them, not given directly to his widow. She can still take out a loan from the trust, but there is no possibility of the fund going to a new partner if she marries again.
This is a huge issue with step families/2nd marriages and the original children can lose everything.

This, particularly as s.33 only applies to direct descendants. If I leave money to cousin Susie and she dies before me, the money goes back into the residue of my estate. Susie’s children don’t get a penny.

I will defer to @Talia99 as she knows her onions, but I don’t think OP has any power to put DBro’s share in a trust for the children if that wasn’t specified by DM.

See previously. Unless the will specifically disinherits them, the money legally belongs to the children anyway. It needs to be treated the way a legacy to a child is usually treated, so probably a trust but their mother has no legal right to it herself.

OP I'm sorry for your loss.
Its only been a were since your mum passes and just over a month for your brother, that's a lot to take in.
Tell your sibling to calm down and revisit in a few weeks when you have had time to grieve.

We've just redone our wills and the solicitor automatically put in that if DS pre-deceases us any inheritance goes to his DCs (even though he doesn't have any yet). So I think that's fairly standard - although j agree with others, you need to speak to a solicitor.

If the children are under 18 it will go in a trust.

So many people on this thread with no actual idea of the law and just chipping in with their opinion! 🤦‍♀️

It's the MN way 😆

Thanks, @SeasonFinale

At least I fessed up to not knowing :-)

I think a child can’t legally give valid receipt for the money so it goes into a trust with the executors as trustees but I wouldn’t give evidence under oath to that effect.

Unless the will says otherwise, the children then get the money at 18 (and there is no power to not hand it over even if the child is likely to blow the lot at that age).

Sorting out a legacy to a child (proper accounts, trustees etc) is probably something the OP wants to get an actual solicitor to sort out to make sure the accounts are set up properly.

I would get some proper legal advice from a solicitor, OP.

That way you will have a qualified professional telling you what the correct answer is and you won't have to argue with your sister, which will only add to your stress and sadness at what is already a very difficult time for the whole family.

Morally I think your brother's children should get his share, and this is probably what your mother would have wanted as well.

I'm so very sorry for the loss of your brother and mother.

What this thread shows is ask a proper lawyer not ransoms on the internet. I am very sorry for your loss OP

*randoms

In a circumstance where DB’s children (or their mother acting on their behalf) could sue the OP and her sibling into oblivion (for the missing legacy plus thousands or tens of thousands in costs) as well. This is definitely a situation where the OP being a good person and wanting to do the right thing has prevented a financial catastrophe for her.