Intestacy, inheritance, statement of wishes, deprivation of assets

[legalalien]

Hoping someone on here might have some words of wisdom for me, I've volunteered to sort out my uncle's estate. The situation is this:

There is no will.

There are two people entitled to benefit under intestacy rules, my dad (elder brother) and my cousin (child of other, also deceased, brother) of the deceased. Half each.

My uncle left a statement of wishes, with no legal effect, saying he'd like the assets divided four ways, quarter each to my dad and my cousin, and quarter to each of two other important people in his life.

My dad and my cousin would be happy to give effect to this.

BUT

My cousin is (I think) on means-tested benefits. If he were to give up half of his share of the inheritance, would this be considered deprivation of assets that could affect his benefits in the future? It's not as though he would be benefiting from them, the two additional recipients aren't relatives or friends of his, just friends of my late uncle. Obviously the amount he does receive will affect his benefits.

Any ideas, anyone?

He doesn’t want to inherit due to his benefits being stopped…how ridiculous

No.... if he gives up his rights to 50% qnd takes 25% instead .. will he be assessed based on havibg received the full 50% as he has deprived himself of that money by agreeing to pass it on according to his uncle's wishes but not according to a will, because there isn't one.

Yes @ChateauMargaux that’s the question. It’s not a vast sum of money but will be above the £16k of whatever it seems to be and his benefits will be stopped while he uses up the money he gets, that’s all accepted, it’s just whether if he gave money to the “moral beneficiary” that would be treated as his money for the purpose of assessing benefits. He wants to do the right thing but it seems to me that could end up having an unintended consequence.

I think you've misread it the question is does he respect his relatives wishes and take 25% or make a grab for 50% as he could be penalised!

From my experience working alongside benefits staff there's no will so no he should be fine! They won't know that he might'techncialy have been entitled
To more unless he tells them anyway

If your uncle didn't make a will, there is no way to follow his wishes without the beneficiaries agreeing to a deed of variation. As you suspect, your cousin doing this and so halving his own gift will almost certainly be seen as deprivation of capital, and he will be treated by the DWP (and LA if applicable) as having received the full amount to which he is entitled through the intestacy rules. I say "almost certainly", but really there's pretty much no chance of it being viewed differently. I couldn't vary my mother's will to have my inheritance diverted to a disabled person's trust to continue receiving my means-tested benefits. These things have to be put in a will.

You could ask a solicitor who knows benefit law, but I can't imagine the DWP would let this happen and continue benefit payments based on the impact of the reduced gift on a claimant's capital. To be honest, I don't think they should, even though I looked into it for myself. And they will find out, to the pp.

Thanks@flourella that’s what I thought might be the case. It’s a pity but I think an inevitable consequence of the intestacy.

I will be advising my cousin’s mum to think carefully about her own will. There seem to be some special rules about inheriting a property that you’re going to live in, for example.

Your cousin inheriting a property and moving in will not impact most benefits, as long as he doesn't already own one. He would obviously no longer be entitled to housing benefit or the housing element of UC if he claims one of those. But your aunt should certainly think now about how to write her will taking into account her son's situation.

Thank you!

No he certainly doesn’t already own one - he owns zip! Which is why I was impressed he’d give up part of his inheritance to do the right thing, although now I don’t think he realistically can.

I would advise your cousin not to give up his inheritance. A will is a will, a statement of wishes holds no sway legally in this situation. If your uncle had really wanted his friends to inherit a quarter of his estate each he would have written a will to that effect.

If you knew my uncle, you might think differently. Not everyone knows much about wills, the formality of wills, the consequences of not making them etc. I think it should be added to the core school curriculum tbh, along with a load of other practical financial and other life skills. I will be advising my cousin as you suggest, because of the issues re deprivation of assets though, not because following my uncle's wishes - in these particular factual circumstances - wouldn't be the right thing to do. I could go into lots of family-specific detail but it wouldn't help with the particular question posed!

The law is the law though. I agree a lot of people know nothing about wills and it definitely is a subject that should be taught in schools along with pensions, taxes etc. But a cousin with nothing (so in a fairly vulnerable situation) trumps family friends in my opinion when there’s no will, and I don’t think any pressure to ‘do the right thing’ should be put on him either way if he is due to inherit due to intestacy. That’s just my opinion, you’re obviously free to deal with it as you see fit.

@WarmBeerAndSandwiches completely get that and there has been no pressure applied, I've emailed him privately clearly setting out the legal position and the non legal position and haven't involved anyone else to reduce the pressure - I'm 100% protective of my cousin, don't get me wrong. No-one in the family was close to my uncle on a day to day level and the friends involved were, and have supported him through years of illness, various financial things etc etc. I'm a lawyer myself so fully subscribe to "the law is the law" and that's what I'll be implementing. To the extent my cousin has (maybe) put pressure on himself, this further legal clarification regarding the deprivation of assets issue will help, I think, in taking the decision away from him. tbh I'm not sure the friends who would potentially benefit would take funds in any case.

So complicated trying to do the right thing!

That sounds very fair. Sounds like you are doing a good job in very difficult circumstances.