Legal Affairs

[Bazile]

Daughter dies without leaving a will , i understand that her estate goes to living parent ( if the deceased has not got any children ) according to the Government website.

Living parent is not capable of dealing with her own affairs anymore.

Living parent has already made a will leaving some of her estate to daughter .

What is the process firstly for a brother of deceased / son of parent, dealing with the estate of the daughter and secondly for dealing with the affairs of the parent ?

[Buenchico]

The mother needs to grant power of attorney (either 'ordinary' or 'lasting') to her son. He will then be able to act as the administrator of his sister's estate and also take control of his mother's affairs. (From what you've written, if the Lasting Power of Attorney route is followed, the son definitely needs a 'property and financial affairs' LPA; he might also need a 'personal welfare' LPA):
http://www.ageuk.org.uk/money-matters/legal-issues/powers-of-attorney/power-of-attorney/

[dzug2]

But if the living parent is not capable of dealing with her own affairs any more then it's unlikely she is capable of granting a power of attorney surely?

Which means applying to the Court of Protection to become her deputy - a long winded and expensive process.

[Bazile]

1. So apart from changing her will , when the mother dies what she has already left in her will (made before death of daughter ) to the deceased daughter will still go to the deceased daughter's estate - is that correct ?

2. Can the brother apply to be an executor of his sisters estate - and how does he go about that ?

[Bazile]

Or is it an administrator, that the brother needs to apply to be ?

[Buenchico]

No 2 first: The 'grant of representation' for dealing with the estate of a person who died intestate is called 'letters of administration', rather than 'probate'. So whoever deals with that estate is an 'administrator'.

There's a 'pecking order' of people who can apply for the grant, with the mother taking priority over the brother. However (as I understand it) the mother can renounce her right to apply. [I used to draft wills for a living but I'm no great expert on the trickier points of intestacy; my job was to prevent such problems arising!].

No. 1: If a will leaves something to someone who has pre-deceased the testator, the terms of the will might cover that situation anyway. (e.g. I leave the sum of £1000 to Fred Bloggs subject to the provision that if the said Fred Bloggs should pre-decease me then I leave the said sum to Battersea Dogs' Home).

If a will doesn't specify what should happen (if a beneficiary under that will pre-deceases the testator) the gift passes in equal shares to the children of the deceased beneficiary (if there are any).

However if the deceased beneficiary didn't have children, the gift 'lapses' and a 'partial intestacy' is created, with the unallocated part of the estate bing distributed in accordance with the intestacy rules.

[Bazile]

ok - so if i am reading this correctly , in this situation because the mother is not capable of-

1. dealing with her own affairs .

2. Renouncing her right to apply for letters of administration .

Then the first step for the brother, is to apply to the Court of Protection to become the mothers deputy , which will enable him to deal with both the mother's affairs and the daughter's intestacy .

Is that correct ?

[ubasses]

Brother needs to apply for Letters of Administration, he can then deal with the Sister's Estate in Accordance with intestacy rules.

If the Mother no longer has the Mental Capacity to deal with her own affairs he really needs to apply to the Court Of Protection to deal with her affairs.

When the Mother dies her Will will come into effect and as the daughter has predeceased her with no offspring her share will revert to the instructions for the residue. If none the brother is the only other beneficiary it will go to him.

[Bazile]

Ok - i just wanted to clarify the point chris made about the mother being first in the pecking order to apply for letters of administration .

thanks all