View Full Version : 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.
ElizabethHerts
18-01-20, 07:32
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.
1. How do you know this was unfair?
2.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.
1. I don't know it was unfair. I was asking IF she thought it was unfair could she do anything.
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?
I have a family in my tree where my 4x-great-grandfather left my 3x-great-grandfather more than his brother.
I've seen this too, and have read some wills where the parent states I already gave X his fair share.
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.
Does that mean the widow didn't inherit anything or just let the child sort it all out?
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.
I have one like this on order, although they seem to have lost the will totally so I have no idea who got what.
ElizabethHerts
18-01-20, 08:46
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.
kiterunner
18-01-20, 10:56
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?
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.
Olde Crone
18-01-20, 11:57
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
Olde Crone
18-01-20, 12:02
I have been executor several times and in every case, the other executor declined to act, causing me a lot of faffing about getting them to swear an affidavit. I will never do it again for anyone, it is a thankless (and unpaid) task.
OC
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?
Yes, Miles Ariel overturned his wife Elizabeth's will. I think she died around 1840 or a bit before.
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.
That is interesting, a lot of men leave their daughters something for their own absolute use ie not for their husband, or future husband, to use but the woman could not write a will to give that away.
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
No, it was Anthony Harland of Lindfield, and his 3rd wife Avis (both died childless). I've been transcribing both their wills, and to muddy the waters she was a widow when she married him and her maiden name turned out to be Harland too. A great nephew was granted administration.
That is interesting, a lot of men leave their daughters something for their own absolute use ie not for their husband, or future husband, to use but the woman could not write a will to give that away.
I have no idea how that worked in practice. I have some wills where the instructions are that the money must on no account fall into the husband's hands, but I don't see how it could be prevented. Marriage settlements and annuities were a way of doling out just the interest, so the husband could not touch the capital, but I doubt you could prevent a man taking his wife's money or using her possessions.
kiterunner
19-01-20, 10:16
The usual thing was to leave the money in trust to the daughter.
Olde Crone
19-01-20, 11:36
Not sure if it is the same thing, but I have lots of incidences of dowry property (property given to a female for her absolute eternal use). I can't work out how this property was passed down the generations, but passed down it most certainly was - a land transaction in the mid 1800s refers to the "dowry of Sissely Townley, 1232" and that dowry document still exists. So, it was possible in some way to protect the property of a female.
OC
The usual thing was to leave the money in trust to the daughter.
The wills I've looked at lately leave everything in trust to the executor who then distributes the proceeds. Not sure if this is the same thing.
If money is left in trust to a daughter, how does she access it?
kiterunner
19-01-20, 22:50
I believe she would tell the trustee how much money she needed and what for, and he would give it to her.
That makes sense.
However, it must have been a hard job. If the woman says I need to feed my family, does he say tough luck, that isn't what this is for, or does he hand it over anyway, knowing the husband should have provided.
I have the wills of a father and son. Father made the son, John executor and trustee. All the children got their share outright, save William, for whom John was made trustee.
When John came to make his own will (complicated by an illegitimate daughter, for whom a trustee was appointed - and hideously complicated when her heirs died out and the estate was divided between the descendants of John's siblings) he specifically mentioned reimbursement for the trustees. I suspect that the relationship between John and William must have been - to say the least - difficult.
Olde Crone
20-01-20, 14:30
Ah, I know someone who is suddenly very wealthy, has left his estate between his three children, two of whom are to be trustees for the third. His reason? The third would, in his father's words " sniff the money up his nose".I
OC
I was going to say William was difficult, rather than the relationship.
I received a will today and I think I'm going to copy it but change the names and locations to suit myself. It covered everything and named every child by her full married name.
The only improvement would have been dates of birth for his children, particularly the one I have never heard of, but that would be a rare will indeed.
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