problem after death

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dublady

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I'm looking for advice about the estate of my late partner's mother who died a few months ago.

A bit of background.....my partner died (suddenly and no will) a few years ago and I made a personal application for probate. This was relatively easy and I got a letter of administration. His estate (except our house) was split equally among our children. I am the official administrator of his estate as the children were all under 18 at the time of his death.

His mother (my childrens' grandmother) died a few months ago. The only notable asset that she left behind was a house. I assumed that the house would eventually be sold and the proceeds split amongst her surviving children and my children.

However, I've just been told that the family are not bothering with probate. It seems there was a will made (the contents of which I don't know). It was one of the DIY wills that are for sale in newsagents.

I was under the impression that the will has to be proved to determine its validity and the assets distributed to the beneficiaries according to it.

I've just been told that one of the grandchildren will be 'taking over' the house......in other words living in it with a view to buying it eventually. Is this legal?

Any advice would be appreciated.
 
First of all, I'm not a legal expert, but to the best of my knowledge, the following things spring to mind:
- The grandmother is nt legally obliged to provide anything to your children (or their father)
- If her will left a portion of the estate to their father, then I think the children should automatically get his share. If the will did not include their father, I don't think they will have any legal interest
- there is nothing illegal about a DIY will once it is witnessed correctly
- the family cann't NOT do probate as none of the assets can be legally distributed until they do so

However, you don't have a legal interest, but your children might so it may be worth employing a solicitor to act of their behalf
 
As there is real property (the house) a grant of probate IS required. This means that the will will have to be lodged in the probate office. Thus, if there is any problem with the will (it being a DIY one) this will be established.

We do not know what the will (if valid) actually says. The grandmother may indeed have left the house to one of her grandchildren and nothing to anyone else. Had your partner been alive, he could claim that she had failed in her moral duty to provide for him (a section 117 action). This action is open to her surviving children. However, this option is not open to a grandchild (ie-your children)

If perchance the house was left in the will to your childrens' father (and I'm making a HUGE assumption here) the house would go into his estate. As he died intestate, it would then pass on intestacy and be divided amongst your children. This is of course ONLY IF the grandmother left the house to your partner.

To sum up - the will will have to be lodged in the probate office. If the will IS valid, the executor is under a duty to distribute the estate according to its terms. Thus, if you/your children are entitled to anything, you will get it.

If its not valid, the estate will be divided up on intestacy - each child would get a share and your children would take the share that your partner would have been entitled to.

Hope this clarifies matters somewhat.

Caveat - I am not (yet!) a solicitor
 
Yeah they have to go through probate. If they (as a group) decide not to apply for a grant of probate then the house cannot be sold by whoever "takes it over" as they will not own it. Your kids grandmother's name (I presume) is still on the deeds. This can't be changed unless someone is appointed executor/administrator by the probate office and then that person can have the property conveyed to the person(s) named in the will or sold and distributed.

AFAIK, once the will os presented to the probate office for proving, it is public record and can be viewed by anyone. Can someone clarify?
 
AFAIK, once the will os presented to the probate office for proving, it is public record and can be viewed by anyone. Can someone clarify?
Click to expand...
Yes, you are correct, any member of the public can view the will once it is proved.
 
- You need to see the will first before you do anything else and then have it examined to make sure that it complies with all of the required rules. Do not be flippant about this many a will has been contested on the basis of invalidity, so you need to see this first, your solicitor will explain articles of invalidity but they are explained in the 1965 Succession Act which is accessible online but its very meaty. You then also need to see if there is a Residue Clause which means that any part of the estate which is left over if not processed under intestacy but direct to a person or personages under the clause.

- Perhaps some of the witnesses signed the will and of course signatories cannot receive gifts so that would go to intestacy unless there is a residue clause
- You would always look to see if the person was or would be compos mentis at the time of signing, failing that you would revert to any previous will.
- Please note that any part of the estate which is not within the will or the residue clause is dealt with under intestacy and would go to you as guardian of your children if they are under 18.
- If the whole will is deemed invalid the whole estate would go into intestacy, any part of the estate which is not dealt with in the will goes under a partial intestacy once there is no residue clause.
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I just need to be clear on your question as it seems that you partners mother decided to leave (by will) the whole estate to you partners niece. Therefore (as you said) why would she (niece) need to buy the house ? Are you talking about inheritance tax ? Why has the executor then not facilitated a conveyance under the will ?
It seems unusual that all of the sons& daughters are content to allow one niece to have the house, unless their is an issue with the house. But in a cunning and deceptive way they might then take out a section 117 in order to obtain their legal right share but that depends on the value or the niece might be prepared to give them their legal right share on agreement , the legal right share (sec 117 of the 1965 Succession Act) is one third of the grandmothers estate divided per stripes or equally.
So if the nice has bought a house for 400k she would be forced if Sec 117 was satisfied to hand one third of the 400k to the sons & daughters of her grandmother to be divided equally.

Are you sure the family (sons daughters) have not agreed to sell the house to the niece and the distribute the funds between themselves ?
I could go on and on but you need to see the will first of all so find out who the executor is and ask for a copy, be careful though it all may be quite honest and you do not want to spoil any goodwill you have with them (excuse the pun).

PS Call the probate office they will explain on how you can view a will if it has been proved, you will need the name of the deceased and the date of death.
Check this out : <http://www.lawyer.ie/10steps/will10s.htm>
 
Thank you for all your suggestions. I'be been through the Probate process (with my children) and I don't want to rock the boat' from a family point of view,

The problem is that I don't have access to the will. Last night I was told that it was 'none of my business' and that the 'family' were sorting things out amongst themselves.......I know this isn't legal. What should I do?

When I did the probate for my deceased partner, I kept all of his family informed and even gave them copies of bank statements, etc. It was surreal in the Probate Office because I had to swear that my children were my children and I had to sign a document to apply for guardianship of my own children. It didn't make sense at the time....I just signed. All of my partner's assets (pension, life assurance etc.) were transferred to me and I split them equally amongst my 4 children)......I got nothing because I was entitled to nothing......I had no issue with that.

My partner's sister was guarantor (to her brother's estate) ........ if I/We maladministered their funds from their late father (which I haven't) then we could be sued.

Question 1. How can I see the will (even a copy) if they don't go through proper channels?

Question 2 - What happens if the grandchild moves in and doesn't legitimise things in the Land Registry?

I'm just worried about protecting the rights of my 'children'. They've lost their father and grandmother.
 
Unfortunately there is no easy way around this , no way to do it without ruffling their feathers and formalising your request. To be honest it seems that your relationship with the other members of the family is not amicable, if they are not prepared to show you the will you would have to ask why not?
To be honest these matters always end up with bad feelings and ill meaning , there is nothing nice about it. People say never go into business with your family, but to be honest that same skulduggery surfaces when someone dies and there is money involved. I think I have given you all I can under the context of this forum, if you feel that strongly about the subject and you feel that something awry is being conducted then you must at least consult and then possibly instruct a solicitor and they will act accordingly having all of the information in front of them. But it all starts with the will and your children's request to see same through you, their mother and guardian.
 
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