Intestacy Rules - distribution query

[CJ70]

Hoping someone can please clarify the rules of intestacy how distribution is made please?
Mr A dies leaving no will, he has no spouse/partner, no children. Grandparents,parents & siblings have predeceased him, he has no nieces or nephews.
Mr A had 5 aunts & 1 uncles - from both his mother & fathers sides.
All aunts & uncles have also predeceased Mr A.
One uncle and one aunt died leaving no children, the other four aunts left 5 children in total.
ie: three aunts left one child each, and one aunt left two children.
These children - who are first cousins of Mr A - are the nearest relatives to inherit his estate.
Is this distributed per stirpes - so each cousin receives their share of their parents (Mr A's aunts)?
Is this distributed per capita - so each cousin receives on fifth of his estate equally?
Which is the correct way according to the law please?

Truly grateful for any clarification you can provide, thank you.

[Morlock]

Stirpes are usually mentioned in a will, if a person dies intestate, the stirpse clause does not apply so the estate is subject to the rules of intestacy.
The cousins will receive one fifth of the estate each.

[Mackeson]

I think it’s per stirpes. In your case each cousin will receive the share their parents would have received had they been living, so the shares will not be the same - as the aunts didn’t all have exactly the same number of children (three cousins will receive a quarter of the estate, two receive an eighth) Hope that makes sense? That’s how I was advised to distribute when dealing with an intestate estate. Hopefully you’ll get further confirmation on this forum in the next few days.

[CJ70]

Stirpes are usually mentioned in a will, if a person dies intestate, the stirpse clause does not apply so the estate is subject to the rules of intestacy.
The cousins will receive one fifth of the estate each.

I know for certain that per stirpes law does apply to intestate estates though.
I'm not certain if it applies when all of one class of relative are deceased (in this case aunts/uncles)

[CJ70]

I think it’s per stirpes. In your case each cousin will receive the share their parents would have received had they been living, so the shares will not be the same - as the aunts didn’t all have exactly the same number of children (three cousins will receive a quarter of the estate, two receive an eighth) Hope that makes sense? That’s how I was advised to distribute when dealing with an intestate estate. Hopefully you’ll get further confirmation on this forum in the next few days.

Thanks Mackeson.
Yes, this was my interpretation ... I thought that aunts/uncles were the final class of relatives to be able to inherit in their own right ... so anything they would have inherited would be divided equally between their children.
I THINK!
I think that's the meaning of 'on the statutory trusts' in the Administration of Estates Act 1925 it says;
"Fourthly, on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate)"
But I'm just not certain.
Hopefully will get some more clarification, as you say!

[des8]

Agree with Mackeson

The Administration of Estates Act 1925 sets out the position:
Section 33 places a statutory trust for sale over all the property in respect of which the deceased died intestate. The estate is divided as per section 46 .
Statutory trusts are defined by section 47(1)(i) and operate on the principle of distribution of the estate among the issue per stirpes
The language is a trifle convoluted, but can be worked through

In trust, in equal shares if more than one, for all or any the children or child of the intestate, living at the death of the intestate, who attain the age of [F1eighteen years] or marry under that age[F2or form a civil partnership under that age], and for all or any of the issue living at the death of the intestate who attain the age of [F1eighteen years] or marry[F3, or form a civil partnership,] under that age of any child of the intestate who predeceases the intestate, such issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate, and so that[F4(subject to section 46A)] no issue shall take whose parent is living at the death of the intestate and so capable of taking;

[CJ70]

Thank you des8
This is the first step in my clarifying if an intestate estate has been wrongly distributed.
My mother is one of the beneficiary cousins - an only child.
The solicitor split the estate 5 ways equally between the cousins.
The estate was split equally five ways between cousins & I've recently had reason to believe this was wrong & my mother should have received a quarter.
I don't even know if anything can be done now, as her cousin passed away almost 6 years ago & the estate distributed just over 4 years ago.
I'm wondering about contacting the solicitor who dealt with it to query their distribution?

[des8]

Who received the grant of administration?
They are the responsible party, and are personally liable for any errors.
Their liability is not subject to any period of limitation.

If there has been an error it would be for the administrator to either redistribute the estate(if he can obtain agreement of other beneficiaries) or make good the shortages himself .
If that happens the administrator could take action against the solicitor.

Depends on how much is at stake, and family relationships, as to whether or not it is worth taking action.

Meanwhile tagging Peridot to check

[CJ70]

The administrators were my mother and one of the other cousins.
My mother instructed a solicitor, who dealt with it all & who were paid out of the estate.
The solicitors didn't mention any other means of distribution, in fact, they said it was fairly straightforward with there being 5 cousins as nearest living relatives, all would inherit equally.
The other cousin who was an administrator has a sister who also inherited, so I believe he and his sister have been paid too much.
It's fairly large sums of money we're talking about, the net estate was just over £780k.
Each received circa £156k & I work that out - if it was paid incorrectly - that 3 of the cousins (including my mother) - were underpaid approx £40k & two of the cousins (including the other administrator) were overpaid approx £60k

[des8]

So the two underpaid cousins could hold your mother liable for their underpayment (approx £80.000).
If they were to do this she would have to persuade the overpaid pair to repay the money.
If that fails she could possibly take action against the solicitor.

A messy business, and might be better leaving it to lie, but see what Peridot has to say.

[Peridot]

Hi CJ70,

Right so all relatives have pre-deceased or did not exeist in all categories until we get back to Aunts and Uncles. In those circumstances as Des8 and others have indicated the Aunt's and Uncle's children would receive the share due to their parent to be divided equally between them if more than one child.

So in this situation where 4 of the 6 Aunt's and Uncles had children the residue of the estate should be split into 4 quarters.

For each Aunt or Uncle with children (4 in this situation) the children of each Aunt or Uncle will divide their parent's quarter share between them. So if there is one child they receive the full 1/4 share of the residue. If there were 5 children of an Aunt then they would receive a fifth of the 1/4 share of the estate.

However it can be agreed between the beneficiaries that there would be a variation to the distribution. A Deed of Variation can be prepared. for example setting out that all the cousins in this instance were to receive an equal share. All the residuary beneficiaries would have to agree to this.

If a Deed of Variation was not entered into then it would appear that the distribution has been carried out incorrectly. Each quarter share should have been about £195,000 (assuming your figure of £780k is after all debts, testamentary expenses etc have been paid out). Three cousins would have received £195,000 the other two cousins (children of the same Aunt), should have received £97,500 each.

However, once distributed the administration has ended and provided there is no alleged financial misconduct the only individuals that can deal with this are the beneficiaries themselves. Anyone who received less than their entitlement would have to approach those who received more and request the additional sum from them by way of redistribution. Bearing in mind this is your mother's inheritance and the fact that the residuary beneficiaries would themselves have approved the estate accounts before distribution it really would be her decision if she wishes to pursue this further. Is the money still available to claim back from those who received more than their entitlement? Is it worth potentially damaging family relations? Is your mother concerned about it? It appears no-one has raised a concern before now?

Des8 rightly pointed out that if the money is no longer available and those overpaid are unable or unwilling to relinquish the overpaid amount there is a potential action that could be taken against the solicitor for negligence. An approach to the other cousins would be needed first. It is also some 4 years ago and I would suggest thinking seriously whether it is worth the stress, time and cost in pursuing this far down the line?

If your mother wishes to pursue the sum then it would be advisable for her to get some face to face legal advice on the best way to go about this from a litigation specialist and potentially a professional negligence lawyer (this may be in the same department even the same person). It would also be necessary for a formal complaint to be made to the original law firm who dealt with the matter but after she has approached her cousins and obtained some further legal advice.

[CJ70]

Thank you Peridot for your very clear response.
The reason nobody raised a concern earlier due is simply due to not realising it could be divided in any other way, and not even contemplating that the solicitor would have made an error.
My mother was her deceased cousin's next of kin & the only cousin to have remained in contact with him.
When he died quite suddenly, it was clear he had a large & pretty complex estate & no will, which is why my mother instructed a solicitor as neither she nor the other 4 cousins had any idea how to handle it.

It was I who suspected, just last week, that it may have been incorrectly distributed.
This was purely by chance - I'm an amateur genealogist & a near identical situation was raised by someone else in a genealogy forum I use.
The estate was approx £780k after all costs, legal bills, debts, taxes etc had been paid.
There was no deed of variation at all, we were informed by the solicitor that as all beneficiaries are equals (all first cousins), it would be split equally between them.

I came here on behalf of my mother to try to clarify this. My mother is aware but doesn't have internet access herself.
Neither my mother nor I have any way of knowing if the 2 cousins that were overpaid still have the money available.
The 2 that were overpaid are not my mother's cousins.
They were children of the deceased's mother's sister & are not in contact with my family at all.
My mother & the other 2 underpaid cousins were children of the deceased's father's 3 sisters.
I expect that the 2 cousins of the deceased who were overpaid would not be inclined to repay any money willingly though.

One of them was an administrator with my mother & he wanted to have a larger amount paid to him & his sister.
His reasoning at the time was that the deceased cousin had 2 properties. One which he had bought & a second which had belonged to his parents.
The deceased's father passed away in 2006 (my mother's blood uncle), leaving all to his wife (my mother's aunt by marriage). She then died just 3 years before her son, leaving everything to him.
The overpaid cousin/other administrator believed that because the last parent of the deceased to die was his blood aunt, he & his sister should inherit the deceased's parent's house between just he & his sister, as well as the one-fifth share in the rest of the estate.
The solicitor advised him the house was now part of his cousin's estate & so would be shared as part of that.

It's all very messy, I know, and what to do next is something my mother will need to think about & speak to her other 2 cousins about, and as you say, seek some legal advice about.
The last thing I want is for my mother to take this further only to have to pay her other 2 underpaid cousins out of her own pocket.

Many thanks for such a comprehensive response though, it has helped to clarify the situation greatly.

[Peridot]

Hi again,
It is a tough decision for her. From the sounds of it relations with the two cousins who benefitted from this and in effect would be required to 'return' some of the money, are not great. They would seem to have already indicated their want for a larger share so I doubt it would be a straightforward matter trying to unravel the distributions.
It would be interesting to know what she decides. If she decides to try and obtain a redistribution I suspect it will not be straightforward.

[Amethyst]

Would there be a complaint against the solicitor Peridot ? ( presumably that's the professional negligence issue ) and would the outcome of that potentially cover any claims against the estate ? How far does the liability on the administrators go if they engaged a solicitor to act ?

Making this error known between the other beneficiaries- particularly those who were also underpaid - could result in claims against the administrator ( money does funny things to people and family relationships) so your Mum needs to consider that carefully too.

[Peridot]

Hi again,

That's right it is the professional negligence angle. Of course the administrators appointed 'experts' to deal so would not be in the firing line if claims were made, however they would be the people who initially have to deal with the issues. They would need legal advice which of course will cost and although if successful in any eventual professional negligence claim they would likely get a costs order that the solicitors would have to pay (if the matter got to Court stages) the funding until that point would be bourn by the individuals suing the solicitors.

Would it be worth contacting the solicitors to point out their error and see what they say in the first instance? It may be necessary for a formal complaint to be made which gives the solicitors the opportunity to correct the mistake, although they would most likely say that initially the 2 cousins who received more than they were entitled should be contacted. Maybe they should be the ones to contact them? It seems the most problematic issue is the cousins who believed they should have received more in any event, are the ones who should be returning funds.

It is a large sum of money to write off but you need to weigh up the stress of perusing. Maybe get the face to face legal advice to confirm what options you could have before deciding which route to take. You may find a free half hour or reduced fee initial appointment that would allow you to look at what could be done.