Partial Intestacy

[Peridot]

Re: Partial Intestacy

The question is are there any surviving brothers and sisters of A?

If there are surviving brothers and sisters then they (or their children if they are predeceased) get C's share divided equally between them.

So if there are no surviving brothers and sisters of A then the 1/3rd partial intestacy goes to the children of all the siblings who would get an equal share, so if there are 8 children of the Uncles and Aunts (A's siblings) and they are the next generation down so to speak then on your example they get 12.50 each.

The partial intestacy amount ie C's share of the residue is divided into equal amounts and passes to each individual on the line of that relationship. If there are no relatives surviving above nieces and nephews of A, each of them inherits an equal share irrelevant of the will legacy already received.

If there are surviving brothers and sisters, parents or grandparents of A then they would be the ones who inherit. There only has to be one surviving relative in the class for that 'level' to be the relevant one.

Does that help or have I muddied even further. The attached flow chart may help

[G7ivp]

Re: Partial Intestacy

The question is are there any surviving brothers and sisters of A?

If there are surviving brothers and sisters then they (or their children if they are predeceased) get C's share divided equally between them.

So if there are no surviving brothers and sisters of A then the 1/3rd partial intestacy goes to the children of all the siblings who would get an equal share, so if there are 8 children of the Uncles and Aunts (A's siblings) and they are the next generation down so to speak then on your example they get 12.50 each.

The partial intestacy amount ie C's share of the residue is divided into equal amounts and passes to each individual on the line of that relationship. If there are no relatives surviving above nieces and nephews of A, each of them inherits an equal share irrelevant of the will legacy already received.

If there are surviving brothers and sisters, parents or grandparents of A then they would be the ones who inherit. There only has to be one surviving relative in the class for that 'level' to be the relevant one.

Does that help or have I muddied even further. The attached flow chart may help

So as all of 'A's siblings are dead the 1/3 intestate share should be divided up between the next generation (the cousins) equally?

[Peridot]

Re: Partial Intestacy

Provided there are no survivors in the generation above ie the brothers and sisters of A, yes.

[G7ivp]

Re: Partial Intestacy

Sorry, but I'm still confused/conflicted. The following sources give a different view:

http://cornerstonewills.co.uk/laws-of-intestacy
If a class of relative existed but has died, then if they had had children, those children will inherit equally what would have been their parent’s share - per stirpes (**). Cousins (but, if deceased, their descendants) are the remotest relatives that can inherit under the laws of intestacy.
http://www.genetic-genealogy.co.uk/s...histories.html
Example A widower leaves £500,000. Of his 5 children, 2 daughters are still alive, but his 3 sons are already dead. Son no. 1 leaves 3 children, no. 2 leaves one child and no. 3 leaves 6 children.
The estate is divided as follows:
The 2 surviving daughters receive £100,000 each. The 3 children from son no. 1 receive £33,333 each.
The only child from son no. 2 receives £100,000. The 6 children from son no. 3 receive £16,666 each.
The above rule also applies when a person's only surviving relatives are nephews and nieces. In the absence of brothers and sisters of the deceased, who would have received equal shares, the shares received by each nephew and niece depends on how many brothers and sisters each has.

What are you relying on for your opinion?

[Peridot]

Re: Partial Intestacy

I think the confusion is in the fact that there are no surviving siblings in the class. If there were then you are correct if one of the siblings had pre-deceased then their children would receive that siblings share, but my understanding is this would only be the case if there were another surviving sibling. If all the siblings have pre-deceased then the next generation inherit equally.

Let me explore further and I'll come back if I find any more on this.

[Amethyst]

Re: Partial Intestacy

I think the problem with those examples comes because C wasn't a decendant of A - only a sibling, and s33 only covers decendants. So if C was A's son, his share would pass to his children in equal shares ... however as C is NOT A's son, it goes back to the estate as the partial intestacy and is divided according to intestacy rules - which is divided equally between all the children of the siblings ( so the cousins ). Your examples are all based on the issue ( children) of the testator. ( I'm sure Peridot will explain better as I don't really understand why there is a partial instestacy and it isn't just put back to the residuary estate and split between the neice and nephew)

[des8]

Re: Partial Intestacy

( I'm sure Peridot will explain better as I don't really understand why there is a partial instestacy and it isn't just put back to the residuary estate and split between the neice and nephew)

I think it is because there is no provision within the will for that to happen..... but I'm looking forward to [MENTION=85500]Peridot[/MENTION] to explain

[Peridot]

Re: Partial Intestacy

Hi all,
Yes it's because there is no provision in the Will to pay a deceased beneficiaries legacy to someone else ie a substitute. If it was children or grandchildren then s33 Wills Act comes into play so their children would inherit the parent's legacy in equal shares. However this is not the case for other relations, hence because C was a brother of the deceased and there was no provision in the will to pay his 1/3rd share to a substitute in the event he had died and the wording gifting the residue does not say it is 'to be divided equally between those of the following who survive me' ie if one pre-deceased then the residue is just divided equally between the surviving beneficiaries, we are left with a situation of a 1/3rd of the estate just 'hanging' - a partial intestacy.

The next issue who should inherit the partial intestacy so the 1/3rd of the estate. There are no other relatives other than nephews and nieces remaining, so they will definitely be the ones to inherit but what we can't get to the bottom of is whether the 1/3rd is divided equally between all of the nephews and nieces, or whether they should receive unequal shares, depending on how many children each brother or sister of the deceased had.

So for example imagine there are 2 brothers of the deceased, one had one child the other had 2 children. Do they all receive and equal share of the 1/3rd or is the 1/3rd split into 2 which then is divided between the children so 1/6th to the only child of the sibling and 1/12th to each of the other children of the other sibling.

I have not come across the situation so don't know in practice what it is. My understanding was if the whole of a class of relatives had pre-deceased then the next class (next generation down) receives an equal share, but this may not be correct. Trying to find a concrete source to make sure we get this right. I'll keep looking and post back once I've found the answer.

[Peridot]

Re: Partial Intestacy

I think you're right G7ivp, apologies if I have caused confusion here.
Ok so the partial intestacy should be divided as if the brothers and sisters inherited and their respective shares are divided equally between their own children ie the nieces and nephews.
So if there are two siblings plus the deceased, one sibling has one child the other has 2 children the intestacy amount will be divided 50% to the single child and the other 50% divided between the other siblings children so they receive 25% each.
At least we've got to the bottom of it. Now you just need to persuade the executors.

[G7ivp]

Re: Partial Intestacy

I think you're right G7ivp, apologies if I have caused confusion here.
Ok so the partial intestacy should be divided as if the brothers and sisters inherited and their respective shares are divided equally between their own children ie the nieces and nephews.
So if there are two siblings plus the deceased, one sibling has one child the other has 2 children the intestacy amount will be divided 50% to the single child and the other 50% divided between the other siblings children so they receive 25% each.
At least we've got to the bottom of it. Now you just need to persuade the executors.

Peridot, thank you for your persistence but what persuaded you that this is the correct interpretation?

[Peridot]

Re: Partial Intestacy

Generally if a beneficiary dies before the testator then the gift lapses but in this circumstance the gift is saved by the statutory trusts on intestacy - s47(1)9i) Administration of Estates Act 1925.
Section 33 Wills Act 1837 is not applicable as it only deals with children and grandchildren of the testator.
With regard to s14 Law of Property (Misc. Provisions) Act 1994 only applies to a full intestacy not a partial intestacy. With the partial intestacy situation the property vests in the executor.

[G7ivp]

Re: Partial Intestacy

Thanks again Peridot.

What can one do if the Executor (who is also a Beneficiary) refuses to acknowledge the other Beneficiaries in such circumstances and is therefore ignoring the rules of intestacy by keeping more than they are entitled to? Is this theft?

I have read about replacing an Executor and that this can be expensive to the Estate. Can the Executor charge the estate with the cost of defending an action to remove them?

Is it an option for the Beneficiaries to club together and appoint a Solicitor to act for them and if they were successful in removing the Executor who is likely to pay the costs; the Executor (personally) or the Estate?

[Peridot]

Re: Partial Intestacy

Hi G7ivp,
It isn't theft ie a police criminal matter, but a civil matter. You would have to apply to the Court to deal with if agreement can't be reached.
As far as costs are concerned the Courts have the power to make a costs order against whichever party they decide. If the matter went to Court then the executor may have a costs order against him if the Judge believes he has not carried out his duties, although they could order the estate to pay which of course would reduce the available funds to be distributed.
It is worth pointing out to the executor that you would seek a costs order against him in the event this cannot be dealt without the need to go to Court.
It is possible to 'replace' an executor and this will come with it's own issues that the replacement would have to in effect start over checking values etc. The cost to replace is not necessarily the issue. The application itself is not a huge amount it is whether there is any argument to be had that could increase the costs.
The other residuary beneficiaries could 'club together' to get the advice they need on the options then make a decision what to do next.
You need to get some face to face advice on this from a contested probate specialist, so you know the options open to you all.