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Legal & money

Inheritance and divorce.

(35 Posts)
Maries Mon 26-Nov-12 08:01:37

This may sound rather horrid really but here goes.

Background:

My brother is separated from his wife.This is not legal, she kicked him out because she wanted to " be happy" and wanted to find another bloke ( I guess - she has had several flings since then). He went to live with mum as it was the only place he could go and he doesnt have enough money to set up alone ( job is 14K a year)

She has three DC - one of which is by my brother. He pays her maintenance for the childand is a weekend dad ( and any time she calls and says she wants the kid out so she can "entertain").

Mum is, well, "wealthy" .This is thanks to inheritances from her childless sister and several inheritances from my fathers family as well as her ownand dads assets. Dad passed away last year.

She has said she was going to split it between me and brother equally. She is worred that she makes sure as much of this money gets to us as possible.

However, my brother has just told her that his estranged wife has said she will not divorce him until after my mother dies and he has his inheritance! She wants it to form part of her settlement on a divorce ( cheeky IMHO!).

It seems she can do this. My mother is livid as she doesnt want to fund her lifestyle. Brothers legal sitiation is currently married but living separately
(just under a year).

Mum is getting on ( and she could go any time but lets be honest, its not likely to be more than six years unless she tanks up over 100 and then it wont be above 10 years) we all know but it doesnt matter when because as ex wife says she is hanging on and we are pretty sure she will too) DB's son is 6, so waiting until he is 16 is an option for her.

Mum doesnt know what she can do to ensure my brother is well set up - has a home etc. which cannot be taken by ex wife when she divorces ( btw wife has marital home in her name as it was hers before she married and brother moved in, paying bills etc. She works. She kickedDB out when she found out mum was not dividing the cash up immediately and she would have to wait to " have fun" and she didnt want to wait as she would be "too old" ....... yeah, I know......at least she is honest ).

Apparently it is the case that all is in the pot on divorce iincluding any inheritances. But, is there anythiong mum can do to safeguard what she wants to give to DB from his estranged wife?

(I know it makes us sound malicious and nasty people to want to leave her out of the inheritance but it is hard earned family dosh)

Greatnan Mon 26-Nov-12 08:07:33

Your brother should consult a solicitor
It would be very unwise to act on advice given on a forum by people who do not know the full circumstances however well qualified they may be

absentgrana Mon 26-Nov-12 08:15:59

I am pretty certain that there is a way round this but, as already pointed out, your mother and brother should get proper legal advice. By the way, your sister-in-law cannot delay divorce indefinitely. After a certain number of years living separately, divorce can take place even if she doesn't consent. Again, your brother should get proper legal advice. He might also like to ask about divorce now on the grounds of unreasonable behaviour, given that she has chucked him out of the marital home and has, apparently, been having flings.

Elegran Mon 26-Nov-12 08:18:41

Yes, it would be worth the cost of your mother consulting someone who specialises in inheritance law and estate planning. How about a trust fund?

It could also be worth the trouble of your brother consulting someone about divorce proceedings - it sounds as though he is the "innocent party" in this, although that term does not seemto be invogue these days. Even if he does not act, it might put the wind up her so that she settles for less. Fight fire with fire.

Maries Mon 26-Nov-12 08:19:21

I think we would rather not, at least initially, like to line the pockets of a solicitor or indeed cause emotions to run high as a result of solicitors.

DB could petition adultery of course but it is likely to lead to a battle over the child - and one which may cause even more emotional turmoil.

Just looking for possibilities really. Thanks.

Maries Mon 26-Nov-12 08:21:44

PS - SiL will put the child into the battle. She has no scruples on that.

absentgrana Mon 26-Nov-12 08:33:06

Maries Adultery, as such, hasn't been grounds for divorce for decades, although it can be used as evidence of unreasonable behaviour.

Your mother could consult a solicitor without running up a huge bill and there is absolutely no way your sister-in-law need know about it, so emotions don't come into it. Spending a little money might avoid a complete and very expensive mess after her death if she does a diy will.

There will always be the question of the child in any sort of divorce, but courts seem to pay rather more attention to a child's need of both parents these days.

Elegran Mon 26-Nov-12 08:36:07

One consultation would not break the bank, Maries, and could save a lot more heartache (and money) later on. Maybe sooner than you think, and it is too late to alter anything once your mother's will becomes active. At least ask for an estimate of what a consultation would cost you, and then mentally subtract that from what she would cost without doing it. you can judge whether it would be worth it.

She would not know anything about a confidential talk with an expert, so could not react. As it is she has your brother over a barrel and knows that he will not upset the apple cart even if he is in the right.

Elegran Mon 26-Nov-12 08:37:55

absent We are at one over this issue. This is emotional blackmail and should not be given in to.

Maries Mon 26-Nov-12 08:43:43

Really absentgranna? I have just read the DIRECT GOV website and it says it is. Unreasonable behaviour is a separate category. Its the quickest divorce category according to them although not much used. Not as I think DB will file for adultery because it is likely to cause even harder feeling I am sure.

There wasnt going to be a DIY will. We all worked out intestecy would leave everyone better placed ( no contesting of wishes) and the tax is being got round in other ways. We have been on the end of wills which do not go right. You would be surprised what some folk will do for money. I have been shocked over what a distant relative did when my aunt died. And the tale I could tell about my DH's "inheritance" would make you hair curl! That was with a will.

Elegran Mon 26-Nov-12 08:44:05

It sounds as though your mother has not yet made a will. I would urge her to do that as soon as she can using a professional to draw it up so that what happens is exactly what she intends

Your SIL will shoot peas through a DIY will, and if there is no will at all, you are all in for a long tedious process which costs money and satisfies no-one (except perhaps greedy SIL)

Elegran Mon 26-Nov-12 08:45:53

I withdraw from the discussion. You will do exactly what you want to - nothing.

Why did you ask for advice?

absentgrana Mon 26-Nov-12 08:49:37

Maries Sorry, I stand corrected. However, I do think consulting a solicitor about a divorce on the grounds of unreasonable behaviour would be advisable.

I would also urge your mother to consult a solicitor about making a will. Intestacy is rarely the best option.

Good luck.

Elegran Mon 26-Nov-12 08:53:19

absentgran was more tactful than I was. Sorry to snap, Maries, but I do believe that you need to do something more here than sitting back and letting this woman take over.

Good luck.

janeainsworth Mon 26-Nov-12 09:01:37

maries I can't comment on your brother's situation as I have no legal background, but two points:
1. it is madness not to make a will and will cost you far more in the long run.
2. Not all members if the legal profession are money-grabbing individuals out to line their own pockets. Some if them, including all the ones I have ever dealt with, have been honest, ethical professional people who have worked in my best interests shock.
Solicitors are obliged to give you an estimate of what their services will cost and there is a complaints service via the Law Society if you are dissatisfied.
To re-iterate, I have no personal connection with the legal profession.
Remember that the price of a service is not be same as its value.

Sel Mon 26-Nov-12 09:07:28

Maries totally agree with getting proper legal advice on this. In a somewhat similar situation my Mother left my brother's 'share' to me. We agreed verbally that I would, in due course, hand it over. Obviously there needs to be total trust between the family for this to work. I don't think that being divorced will protect your brother as assets, even from a family inheritence can be targeted long after any divorce. Completely wrong IMO. Good luck!

annodomini Mon 26-Nov-12 09:23:26

Legally the only grounds for divorce is 'irretrievable breakdown' of the relationship for which adultery is one form of evidence. A family trust might be one way to tie up the inheritance so that the wife can't get her hands on it but this would have to be handled by a solicitor and if you don't want to do this, so be it.

Barrow Mon 26-Nov-12 10:05:05

I agree with the other posters. Making a Will, if you have substantial assets, is definitely better than intestacy.

A lot of solicitors will give a free initial consultation - your local Law Society could advise you which ones.

In your position I wouldn't wait any longer but get legal advice as soon as possible.

merlotgran Mon 26-Nov-12 12:15:38

maries. You are wrong if you think your mother dying intestate will save money. I am still waiting, after three years, to inherit some money from my father's cousin who died intestate. He was a very wealthy man and so far solicitors have hoovered up nearly £500,000. Everytime we (there are forty of us due to inherit) ask why we have not yet received any money, they come up with more delaying tactics.

I wrote about this some time ago (on another thread) and believe me, it's incredibly stressful knowing a legal firm cares nothing about you. They just want your money!

Always make a will.

Barrow Mon 26-Nov-12 12:27:04

merlotgran If you think the Solicitors are using delaying tactics you could make a complaint to the Law Society. Of course with so many people due to inherit getting everyone together could be a problem. Are there one or two people who could speak for you all? If so I would ask for a meeting with the Solicitors and get a complete run down of what they have done, what the continuing delay is and a realistic date they anticipate settling the estate.

To be fair some intestate estates can be very complicated and take some time to work out. Have the Solicitors made an interim payment to the beneficiaries? After three years I think it highly unlikely they are still trying to trace beneficiaries so an interim payment could be made.

merlotgran Mon 26-Nov-12 12:59:05

Barrow, we have thought about complaining to the Law Society but we would have to get all the others to agree which will be a problem because some of them are very old and infirm and three have died in the last year. Their shares will go to their estates but we obviously don't know who they are so we would have to appoint someone to trace them. I can't see any of the others agreeing to that.

Everyone who was a direct descendant has been traced. We were the last - I got the letter three years ago next month. The others have been waiting for nearly five years!!

The solicitors are just dithering on purpose because they can run up costs every time one of us contacts them to ask what's going on and they then have to send out thirty letters giving the latest excuse. angry

I think we just have to sit tight.

Nanadog Mon 26-Nov-12 13:00:19

A reputable solicitor will charge about £150 + VAT to draw up a will and advice will be given during this process. I know this as I've just been through this less than a week ago.

They're not all lining their pockets, you must be thinking of litigation law. I'd think this money well spent.

annodomini Mon 26-Nov-12 13:08:59

What's more, you really should ask your mother to have a Lasting Power of Attorney drawn up so that you and any siblings can take care of her affairs if she should become incapacitated.

absentgrana Mon 26-Nov-12 14:17:28

Maries I said my piece, for what it was worth, and intended to let well alone. I have just clicked on this thread again by mistake – twitchy finger – but while I was here I thought I might just as well read what other grannies had suggested. However, something in one of your posts has caught my eye.

"We all worked out intestecy [sic] would leave everyone better placed (no contested wishes) and the tax is being got round in other ways.

You must be very careful about tax. Whether there is a will or someone dies intestate, a realistic value of the estate has to be submitted to Revenue and Customs even if inheritance tax will not be incurred. Revenue and Customs do not have to accept the estimate if it is thought to be unrealistic. Any attempt to conceal the required information will end in tears, even if it is not discovered until much later. The sentence that I have quoted above is on a public forum and anyone can read it, including tax inspectors. I am sure that fraud is the very last thing on your mind but that is what this sentence implies. Of course, you may be "getting round" the tax by the wholly legal means of your mother giving you and your brother the maximum amount allowed each year while she is still alive and this counts against inheritance tax depending on the number of years between the gift and her death.

Barrow Mon 26-Nov-12 15:15:11

merlotgran If it is hard to get everyone together, why not consult an independent solicitor on your own. He/she could write to the solicitors dealing with the estate and would be more likely to get a specific answer (they wouldn't be able to baffle them with legalese!). Just a thought.

As I mentioned to Maries there are solicitors who will give a free initial consultation which should at least give you some ammunition to use against the original lot!