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.

Report your post to MN and ask - I’ll do it for you as well.

100 hundred percent your deceased brother’s wife gets his share.

Interestingly, unless the will said to your mother’s children if she pre-deceased the testator, legally you would have no entitlement to the money from a great-aunt. Either the will did say that or the residuary beneficiary wanted to do the morally right thing.

Legally completely incorrect. His children get his share not his wife.

I think I’d put your brothers share in trust for his children regardless of whether legally you have to or not.

No!!

If it was just a wife, she gets nothing

His kids get his share, that's the law (unless Will specifically says they don't)

Thank you. Will report myself as well.

Thanks again for all your replies. It is very much appreciated

X

If you want to then you'd report your OP, click the Other option for why you're reporting and say in the comments section "please can you move this to the Legal section".

But tbh I think you've had all the advice you need now:

It seems extremely likely that Section 33 applies and you and your sister are legally bound to split the estate with your brothers children (they'd split his third between them).

But (as you have already said you're going to) you should probably get a solicitor to double check the wording of the Will just in case there's something odd, because nobody on here has seen it. This will also help persuade your sister that legally she doesn't have a choice.

Im sorry for your losses.

Not sure why you decided to reply this to what I posted - assume you did so in error

No, I’ve checked and it was your post I was agreeing with.

No, you’re wrong. The OP said the will does not state what should happen if one of the siblings predeceased their mother, as has happened here. Therefore, the estate should be split between the remaining siblings.
If the beneficiaries wish, they can complete a deed of variation to include their deceased brother’s children, but both beneficiaries have to agree.

This is completely legally incorrect. The Wills Act s.33 specifically applies in this situation. The will doesn’t have to cover the relevant point, legislation does it instead.

Unless the will specifically says not to, the children of the OP’s brother are entitled to his share of his mother’s estate since he pre-deceased her.

No deed of variation required and no discretion on the part of the person distributing the estate (who is legally liable for getting it wrong).

Yes, I've now been thinking about it more and I suspect there was something in the will. I'm going to see if I can find it...

The second one was my nan so that was presumably more straight forward (my mum was an only child) and correct legally that my brother and I inherited as would be under intestacy.

Why is he heartless? For all we know, he might be struggling financially, whereas his deceased brother may have left a massive life insurance payout plus death in service payout to his children.
We don’t know the financial circumstances here!

Well, under s.33 of the Wills Act (which says if a parent leaves money to a child that pre-deceases them, the children of that child take in the parent’s place) but legally correct, yes.

I’ve just double checked the wording on my mum’s will, which is different!
it says that her estate to be shared between whichever of her children should be alive when she dies - so somewhat different. My solicitor pointed out that as my sister died many years ago, her children (who are now adults btw) cannot receive their mother’s share.
Wills are such confusing things!!!

100% not
His children inherit not his wife

It would be the morally correct thing to do to give your brothers share to his children. I'm not sure how your sister could think differently.

@Shivvy1 - I am so sorry to hear of your losses.

Please don't take as gospel what people say here: you need legal advice, so please get it soon. I include myself in that.

I had a very similar situation in that a sibling predeceased a parent by days, but the parent's will had specified that sibling's children would inherit if that happened. It's what my will says, too.

If you aren't an executor, then you won't be dealing with the will in any legal sense. I have no idea what happens in such circumstances - maybe you get a court-appointed executor?

There is now a vehicle called a 'deed of variation' which allows you to reallocate an inheritance and would, I imagine, keep any recipient out of the Inheritance tax trap if the donor were to die within 7 years.

But legal advice, legal advice, legal advice.

Worth pointing out that none of us, legally qualified or not, have seen this will. It is, in my opinion likely that s33 applies and the children of DB inherit his share, but the wording, exact wording, of the document is critical - also whether it is actually valid (ie was witnessed)
So visiting a solicitor would be my best advice.

Absolutely

The OP likely won't be acting as executor, it would be best to instruct a solicitor and get them to handle the whole matter, that way no one can accuse the OP of doing anything wrong.

Remember that until matters are sorted you shouldn't start clearing the house or removing anything from it, the executors will want to make an inventory and instruct accordingly.

If any bills need paying, pay them and keep the receipt of payment to claim from the executor.

And case law apparently says that unless the will specifically says ‘and the child’s share should not go to his/her children’, or leaves it to someone else, that isn’t enough.

Hives v Machin [2017] EWHC 1414 (Ch) says that just saying ‘to such children as survive me’ isn’t enough. That’s a first instance case but it shows the view the courts may well take.

That's quite a specific wording and potentially you could argue that it excludes Section 33 and hence disinherits your nephews and nieces. I don't think that it actually does though, if it went to court I reckon that a judge would find that section 33 still applies.

But it's a good example of why nobody on this thread, even if they're practising probate solicitors, can say for certain what should happen to the OP's mother's estate without seeing the actual full Will.

Completely this. Also, if there is family disagreement, a proper written legal advice probably holds more weight than a lot of randoms off the internet.

This thread shows how material some people can get after death. What is your sisters reasoning for not giving his share to his family?