Lawlink : Inheritance Hassles

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Q. My uncle passed away about ten years ago. He owned a house that his son, my cousin, was living in. My uncle never married. We all assumed that the house had been left to the son as they were very close, but it turns out that my uncle had made a will many years ago which left everything to his two sisters. One sister has passed, and the other sister (my mother) is still alive. We are not sure what to do. Our cousin wants to continue living in the house, and my mother also wants that, but wants to make sure she is legally protected. What can be done?

Dear Reader,

This can be a difficult query to answer without having sight of the precise wording in the will. That being said, there are certain things you should bear in mind.

You should consider who was appointed as the executor under the will. That person should start the process of extracting a Grant of Probate in the estate. If that person has passed away, or is unwilling to act, your cousin can seek to take out the Grant of Probate himself.

The next thing to consider is who the beneficiaries are under the will. Clearly your mother is entitled to inherit at lease one half share of the estate. I note that your aunt named in the will has passed away. If she passed away before your uncle,  the gift to her would fail and your mother would inherit the entire estate.

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If she passed away after your uncle, her share would pass according to her estate, either under the terms of her will or, if she did not leave a will, her share passing to her own spouse and/or children.

If all potential beneficiaries (i.e. your mother and potentially your aunt’s spouse and her children) agree, an option would be for them to simply disclaim their interest in the estate. The proceeds of the estate would then be distributed according to the laws on intestacy, – that is to say, equally between your uncle’s children. If your cousin living in the property is the only child of your uncle, this might well prove a solution to your issue.

If your uncle has more than one child, it is possible that your mother (and, again, your aunt’s spouse and children) can simply gift the property to your cousin. There may well be tax implications for the same, it’s worth noting.

As you can see there are many potential solutions, the attractiveness of which is very dependent on your particular circumstances. If all parties are agreed with the outcome (i.e. that your cousin retain the property), there should be a route to achieving this in a sensible and tax efficient manner. You are strongly advised to immediately consult with your solicitor.