Probate

cabledude

Hi All,

Just a 'hypothetical' question for you all.

Suppose a family lost a parent, a father for example. Kids are grown up and the mother is deemed to be the executor of the estate. There was a large sum of money left behind. No other assets apart from the family home which automatically transfers to the mother.

In terms of the division of the money, it would be up to the executor to instruct the solicitor as to who the beneficiaries are. She would have to name her children and give the addresses to the solicitor for distribution of the money.

What if she 'forgot' one of the kids. It is a testing time and all and she is forgetful at times. Also, paperwork would not be her forte, as it were. Money is split out and one lad is 'forgotten' about. Money is spent, gone, forgotten.

What recourse would he have, if any?

OscarBluth

Even for a hypothetical it is pretty unclear - presumably there was a will left, which named the children as beneficiaries? Or are you talking about a situation with no will?

cabledude

OscarBluth wrote: »

Even for a hypothetical it is pretty unclear - presumably there was a will left, which named the children as beneficiaries? Or are you talking about a situation with no will?

Intestacy. No will. Succession rules apply. Next of kin gets 2/3 and kids get 1/3 split between them equally.

brian_t

cabledude wrote: »

What if she 'forgot' one of the kids. It is a testing time and all and she is forgetful at times. Also, paperwork would not be her forte, as it were. Money is split out and one lad is 'forgotten' about. Money is spent, gone, forgotten.

What recourse would he have, if any?

Is it to be assumed that this lad was off the grid all this time and unaware that his dad had died.

Presumably if she genuinely forgot about him, she could make up for it by leaving him the family home.

cabledude

brian_t wrote: »

Is it to be assumed that this lad was off the grid all this time and unaware that his dad had died.

Presumably if she genuinely forgot about him, she could make up for it by leaving him the family home.

No. That is not the situation at all. He is very much on the grid. He was there for a week while his Dad was close to death, he organised the funeral and gave the eulogy. Speaks to her a couple of times a week. But he is concerned that she may 'forget' him on purpose. He does well for himself. He has a good income and is happily married with kids. His siblings, with the exception of one, have not been as lucky as he has. She doesn't 'get' finances as such. She has never had to work to earn a living. He is afraid that she may decide that his siblings needs are greater than his and instruct the solicitor in such a way as to cut him out.

If this were to happen, does he have any recourse?

nuac

Mod
Is this really a hypothetical question?

cabledude

nuac wrote: »

Mod
Is this really a hypothetical question?

Yep.

OscarBluth

Hypothetically, I'd assume that something would have to be lodged somewhere saying what has been done with the money in the way that happens when there is a will, but have no idea of the detail of that. Assuming it is the case though, it would be pretty clear it didn't follow standard intestacy rules and then he could take a legal case. If the money was gone, and she was the executor, then I assume she would legally be required to right the wrong and to provide the money that was owed - that certainly seems to be how it would work if there was a will that was ignored by the executor.

cabledude

OscarBluth wrote: »

Hypothetically, I'd assume that something would have to be lodged somewhere saying what has been done with the money in the way that happens when there is a will, but have no idea of the detail of that. Assuming it is the case though, it would be pretty clear it didn't follow standard intestacy rules and then he could take a legal case. If the money was gone, and she was the executor, then I assume she would legally be required to right the wrong and to provide the money that was owed - that certainly seems to be how it would work if there was a will that was ignored by the executor.

So he may have legal recourse? Thanks so much.

I'm doing an assignment for a legal module in college and we have to develop a hypothetical scenario that has legal, moral and ethical concerns. I have the moral and ethcial ones covered ff but needed to research the legal end of things.

OscarBluth

Well I would suggest if its for a college assignment you might want to look at the actual law rather than asking on boards

I am sure you could find some relevant case law. Step one would probably be looking up the laws that apply in cases of intestacy, and then seeing exactly what obligations the executor would have, if there is any guidance available to them, etc. If you find an answer for sure, do post it back - I would be very surprised if there wasn't legal recourse but I don't know exactly what shape it would take.

brian_t

cabledude wrote: »

He does well for himself. He has a good income ...... He is afraid that she may decide that his siblings needs are greater than his and instruct the solicitor in such a way as to cut him out.

He will have it sorted - one way or another - before the "Money is spent, gone, forgotten."

cabledude

OscarBluth wrote: »

Well I would suggest if its for a college assignment you might want to look at the actual law rather than asking on boards

I am sure you could find some relevant case law. Step one would probably be looking up the laws that apply in cases of intestacy, and then seeing exactly what obligations the executor would have, if there is any guidance available to them, etc. If you find an answer for sure, do post it back - I would be very surprised if there wasn't legal recourse but I don't know exactly what shape it would take.

I know, ya!! I'll be sure to mention Boards in my bibliography.

Of course, I'm at it at the minute. It seems that the administrator has a lot of responsibilities and legal obligations. He/She assumes control of the entire estate, debts and obligations and takes sole ownership of the funds that are left behind.

My ethical dilemma for this character was two fold
(i) How does he deal with the aftermath of a situation like this and possibly having to take legal action against his mother and
(ii) What were the obligations under which the executor was working. Does ignorance qualify as a defence? Probate is possibly one of the only areas of law where a lay person takes on legal obligations by default.

Thanks for you help and feedback!!!

cabledude

brian_t wrote: »

He will have it sorted - one way or another - before the "Money is spent, gone, forgotten."

Of course. I was trying to determine a course of action from a legal point of view. I'm sure this has happened in the past. He would need to be on the ball and strike immediately that he finds that his fears have been realised.

brian_t

cabledude wrote: »

(ii) What were the obligations under which the executor was working.

If there was no will then how is there an executor.

cabledude

brian_t wrote: »

If there was no will then how is there an executor.

Administrator then.

brian_t

cabledude wrote: »

In terms of the division of the money, it would be up to the executor to instruct the solicitor as to who the beneficiaries are. She would have to name her children and give the addresses to the solicitor for distribution of the money.

Is there not an onus on the solicitor to distribute the estate according to the law.

You seem to imply that he has no input but simply does what the Administrator tells (instructs) him to do.

cabledude

brian_t wrote: »

Is there not an onus on the solicitor to distribute the estate according to the law.

You seem to imply that he has no input but simply does what the Administrator tells (instructs) him to do.

Of course there is. I assume you are referring to determining beneficiaries. How is this done? Is it as simple as him/her asking the next of kin or would they drill down deeper and conduct searches of birth records etc?

They hypothetical scenario I am suggesting is that the Mother in this case decides to 'forget' to tell the solicitor that a beneficiary exists. She has decided that one of the adult children is in a better position in life and does not have as much need for the money as the rest. Not knowing that she could be committing possible perjury, she decides not to tell the solicitor of the existence of this beneficiary.

Maybe I am after over complicating my scenario? He told us to broaden our minds. So, I did.

brian_t

cabledude wrote: »

Of course there is. I assume you are referring to determining beneficiaries. How is this done? Is it as simple as him/her asking the next of kin or would they drill down deeper and conduct searches of birth records etc?

You seem to be assuming that the disinherited son is not doing much to act on his suspicions that he might be disinherited.

If the son opened a thread on boards to voice his suspicions and get advice - the thread would be closed and he would be told to get a solicitor.

Obviously he has a good income and can well afford a solicitor.

Assuming he has a solicitor actively looking after his interests - could his mother and her solicitor really go through probate and distribute the estate without the sons' solicitor finding out.

brian_t

cabledude wrote: »

Not knowing that she could be committing possible perjury, she decides not to tell the solicitor of the existence of this beneficiary.

I don't think this would be perjury.

Just out of curiousity I wonder what offence this would be ?

coylemj

brian_t wrote: »

I don't think this would be perjury.

Just out of curiousity I wonder what offence this would be ?

I think it could end up being perjury. If the mother becomes the executor of an estate covered by intestacy, in all likelihood she would be asked to swear as to the veracity of her statement outlining the beneficiaries i.e. 'I swear that this is a full and complete list of the people entitled to benefit from this estate.'

I did personal probate a few years ago, when I was called in to the Probate Office to present my documents, the lady (a qualified solicitor I imagine) pulled a bible out from a drawer and I had to swear on documents outlining the deceased assets i.e. that this was a complete inventory of the assets of the estate.

Knowing that one of her own children was omitted from the list of beneficiaries would leave the mother in this case open if not to 'perjury' but certainly to an equivalent offence under the Statutory Declarations Act.

cabledude

coylemj wrote: »

I think it could end up being perjury. If the mother becomes the executor of an estate covered by intestacy, in all likelihood she would be asked to swear as to the veracity of her statement outlining the beneficiaries i.e. 'I swear that this is a full and complete list of the people entitled to benefit from this estate.'

I did personal probate a few years ago, when I was called in to the Probate Office to present my documents, the lady (a qualified solicitor I imagine) pulled a bible out from a drawer and I had to swear on documents outlining the deceased assets i.e. that this was a complete inventory of the assets of the estate.

Knowing that one of her own children was omitted from the list of beneficiaries would leave the mother in this case open if not to 'perjury' but certainly to an equivalent offence under the Statutory Declarations Act.

I think the administrator/next of kin would have to swear an affidavit outlining what you said above.

cabledude

coylemj wrote: »

I think it could end up being perjury. If the mother becomes the executor of an estate covered by intestacy, in all likelihood she would be asked to swear as to the veracity of her statement outlining the beneficiaries i.e. 'I swear that this is a full and complete list of the people entitled to benefit from this estate.'

I did personal probate a few years ago, when I was called in to the Probate Office to present my documents, the lady (a qualified solicitor I imagine) pulled a bible out from a drawer and I had to swear on documents outlining the deceased assets i.e. that this was a complete inventory of the assets of the estate.

Knowing that one of her own children was omitted from the list of beneficiaries would leave the mother in this case open if not to 'perjury' but certainly to an equivalent offence under the Statutory Declarations Act.

Thanks for that. I understand the mechanics of it now.

I just wanted to be factual. It would have taken me a week to figure this out looking up case law and in the library. Thanks Boardsies!!