Wills and how they work
As my orders as being delivered I have some questions about how wills work. I have never been involved in the probate of a will.
1. One will left 3/5s to the executor and 1/5 to each of her 2 brothers. If she felt this was unfair could she have split the estate 3 ways? Or does she have to do what the will says and if she felt it was unfair even up the money after disposal? I know she could not have not given her brothers their full share. 2. I received an administration today. There was a will, executors were the 2 sons. It said the executors declined probate and her husband did an administration. I didn't receive a copy of any of the papers but how can you decline to probate a will, if there is one? Or if the sons didn't want to be executor, why didn't the husband probate the will? |
1. How do you know this was unfair? The brothers may have been given money in their lifetime, or be well-settled in life, in good jobs. Daughters, particularly single or widowed daughters are often singled out because they are less well off, especially if they have stayed behind to look after their parents. An executor has to obey the terms of a will. If they didn't it would call their role into serious doubt. However, with the agreement of all parties you can vary the terms of a will (Mum did that to give sib and me a bit more when dad died) I'm not sure when that was first allowed. There is nothing to prevent a beneficiary gifting part of their share to anyone they wish - if they receive it outright, without strings.
2. Courts are only interested in wills if they are going to make money. If someone's estate is below the threshhold of death taxes, there is no need for the will to go to probate. Executors may decline to act if there is a lot of work but little reward. A wife might simply have a couple of savings accounts and a few bits of jewellery and china, and it may have been easier just to let Dad sort it out. |
I have a family in my tree where my 4x-great-grandfather left my 3x-great-grandfather more than his brother. In my early days of research I was in contact with descendants of the brother and they thought it was most unfair that my ancestor got more than theirs.
However, now I am older and wiser, I can see exactly what happened. The brother was a few years older and already set up in his trade, the same as his father's. My ancestor had only just reached his majority. All the other siblings were settled. I can now see that my ancestor was treated favourably in the will as the other siblings had already benefited from their father's genorosity. As Phoenix says, many children could have already benefited prior to the testator's death. Re. the second point, I have transcribed quite a few wills where the administrator renounced the administration, nominating someone else. Most of the time, it seemed to be a widow renouncing in favour of a son (or daughter). I have transcribed several Cornish wills where this happened. |
Even when a will has had a probate there can be a further administration, I've been transcribing a will of a miller where the widow was granted probate, but she failed to administer it so following her death the great nephew who was next of kin to the miller was granted administration of the will seven years after the probate.
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2. I understand not wanting to be executor but when there is a will and the executor doesn't want to do it, why the will then ignored? Quote:
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Re. the renunciation by a widow, the will still stands and if she is mentioned a beneficiary she still gets her share. It is just the person responsible for the allocation has changed. The new executor has to abide by the terms of the will. It takes the burden off the originally appointed executor.
A change in executor has no impact on the terms of the will. |
If there is a will, the executor is required to act by its terms. No if, no buts.
If the value of the estate is below the level in which the state takes an interest (eg collecting death duties on its value) then they would not bother to file the will, simply grant administration so that assets like bank accounts could be accessed. |
Before the Married Women's Property Act, though, if a married woman left a will, her husband could have it overturned, couldn't he? Didn't this come up on a thread on here once?
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Before 1882, a will could only be written by a woman with her husband's consent, because she had no property to bequeathe. But I cannot imagine that it would actually reach the courts, and in those circumstances there would be no administration to be granted.
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Jill
That's interesting, I have exactly the same situation, the widow of a miller did not execute his will, much to the annoyance of the children of his first marriage. She held off for seven years, then the local vicar applied for admon and got it. Wasn't Stubbs/Lawton, was it?! OC |
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