Succession Act 1965 question?

ittakestwo

I have a question regarding inheritance that I hope somebody could please comment on.

I believe from the Succession Act that:

1) if a parson dies without making a will (intestate) then 2/3 of their estate will go to their spouse and a 1/3 to their children to be split evenly between them.

And

2) if a parent makes a provision to a child in writing before they die and then subsequently die intestate then this has to be taken into account when the estate is settled.

So if married man has three children and dies intestate. If before his death he gifted one of his kids €100k and then dies leaving an estate of €600k. Would his wife get €400k and the two kids that had not got a gift before get €100k each while the kid that had already received the €100k gift get nothing further?

This is a problem my family are having except in our case it was property gifted and property left after death. The father died intestate 20 years ago but had had gifted one of his chilldren a house a few years before. He died before his wife who inherited 2/3 of his estate at his death but did nothing with the property and when she died left her 2/3 share of the property evenly between the children. Now the child who originally received a gift of a house is claiming the same share in the estate left from his parents as the other children.

Can it be asserted they don't have the same share or has to much time elpased since the gift and intestate to be taken into account?

As the family are arguing over distribution of the property which is leading to nothing being sold can one of the children go for a deed of partition to the court and also simintainsly ask the court to rule on a fair distribution given the family history.

How long would a deed of partition take?

I know it is a mess.

Peregrinus

There's no rule that a parent has to treat all the children equally, or that gifts made during the deceased's life have to be taken into account in the distribution of the estate.

The only relevance that gifts made during life have is this; a child can go to court and challenge the distribution of a parent's estate (whether under a will or under the intestacy rules) on the grounds that the parent has failed in their moral duty to make proper provision for the child, in accordance with their means. If such a challenge is made, then the courts will look at what the parend did for their children while they were alive in order to decide whether they have made proper provision for them.

But, note, there is no rule that "proper provision" means an equal share of property with the other children of the deceased.

So, suppose I have €500,000 and four children. To simplify matters, my spouse is already dead. I give €100,000 to one child, leaving me with €400,000. I then die, with no will; under the intestacy rules, each of my children will receive an equal share of the estate, €100,00 each. The upshot is that one child gets a total of €200,000 from me, between gift and interitance, while the others get €100, each.

That's what will happen, unless one of the aggreived children goes to court to argue that I have failed to make proper provision for him. He can't do this simply by pointing out that another child has got more than he has, because I have no moral duty to see that each child gets the same amount. He'll have to find some other grounds for arguing that I had a moral duty to see that he got more than €100,000.

ittakestwo

Peregrinus wrote: »

There's no rule that a parent has to treat all the children equally, or that gifts made during the deceased's life have to be taken into account in the distribution of the estate.

The only relevance that gifts made during life have is this; a child can go to court and challenge the distribution of a parent's estate (whether under a will or under the intestacy rules) on the grounds that the parent has failed in their moral duty to make proper provision for the child, in accordance with their means. If such a challenge is made, then the courts will look at what the parend did for their children while they were alive in order to decide whether they have made proper provision for them.

But, note, there is no rule that "proper provision" means an equal share of property with the other children of the deceased.

So, suppose I have €500,000 and four children. To simplify matters, my spouse is already dead. I give €100,000 to one child, leaving me with €400,000. I then die, with no will; under the intestacy rules, each of my children will receive an equal share of the estate, €100,00 each. The upshot is that one child gets a total of €200,000 from me, between gift and interitance, while the others get €100, each.

That's what will happen, unless one of the aggreived children goes to court to argue that I have failed to make proper provision for him. He can't do this simply by pointing out that another child has got more than he has, because I have no moral duty to see that each child gets the same amount. He'll have to find some other grounds for arguing that I had a moral duty to see that he got more than €100,000.

There does seem to be a rule in the Succession Act about gifts made before dying intestate. Below is an extract


63.—(1) Any advancement made to the child of a deceased person during his lifetime shall, subject to any contrary intention expressed or appearing from the circumstances of the case, be taken as being so made in or towards satisfaction of the share of such child in the estate of the deceased or the share which such child would have taken if living at the death of the deceased, and as between the children shall be brought into account in distributing the estate.

(2) The advancement shall, for the purposes of this section only, be reckoned as part of the estate of the deceased and its value shall be reckoned as at the date of the advancement.

Claw Hammer

Peregrinus wrote: »

There's no rule that a parent has to treat all the children equally, or that gifts made during the deceased's life have to be taken into account in the distribution of the estate.

The only relevance that gifts made during life have is this; a child can go to court and challenge the distribution of a parent's estate (whether under a will or under the intestacy rules) on the grounds that the parent has failed in their moral duty to make proper provision for the child, in accordance with their means. If such a challenge is made, then the courts will look at what the parend did for their children while they were alive in order to decide whether they have made proper provision for them.

.

Section 117 does not apply in an intestacy.
https://www.irishexaminer.com/farming/arid-31000428.html

Claw Hammer

ittakestwo wrote: »

I have a question regarding inheritance that I hope somebody could please comment on.

I believe from the Succession Act that:

1) if a parson dies without making a will (intestate) then 2/3 of their estate will go to their spouse and a 1/3 to their children to be split evenly between them.

And

2) if a parent makes a provision to a child in writing before they die and then subsequently die intestate then this has to be taken into account when the estate is settled.

So if married man has three children and dies intestate. If before his death he gifted one of his kids €100k and then dies leaving an estate of €600k. Would his wife get €400k and the two kids that had not got a gift before get €100k each while the kid that had already received the €100k gift get nothing further?

This is a problem my family are having except in our case it was property gifted and property left after death. The father died intestate 20 years ago but had had gifted one of his chilldren a house a few years before. He died before his wife who inherited 2/3 of his estate at his death but did nothing with the property and when she died left her 2/3 share of the property evenly between the children. Now the child who originally received a gift of a house is claiming the same share in the estate left from his parents as the other children.

Can it be asserted they don't have the same share or has to much time elpased since the gift and intestate to be taken into account?

As the family are arguing over distribution of the property which is leading to nothing being sold can one of the children go for a deed of partition to the court and also simintainsly ask the court to rule on a fair distribution given the family history.

How long would a deed of partition take?

I know it is a mess.

It would seem that the child who got the house has as much right to share in the mothers 2/3 as the others.
The only question is if he is entitled to a share in the undistributed 1/3 of the fathers estate.
In theory an order for sale can be sought but the legal costs might be more than the value of the share in dispute. There is no point in going to court over €25k or €30k.

ittakestwo

Claw Hammer wrote: »

It would seem that the child who got the house has as much right to share in the mothers 2/3 as the others.
The only question is if he is entitled to a share in the undistributed 1/3 of the fathers estate.
In theory an order for sale can be sought but the legal costs might be more than the value of the share in dispute. There is no point in going to court over €25k or €30k.

On paper it is not worth going to court. But distribution can not be agreed within the family.

How long and how much would it cost for a court to rule on a distribution?

Claw Hammer

ittakestwo wrote: »

On paper it is not worth going to court. But distribution can not be agreed within the family.

How long and how much would it cost for a court to rule on a distribution?

In a contested case, depending on what part of the country you are in, it could take several years to get to hearing and there could possibly be an appeal adding at least another year.
The minimum cost would be 15k but it could be double, treble or quadruple that or more depending on how events turn.
You should look at settling, mediation or arbitration before going to court. It is utterly stupid to go to court.