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General => The Common Room => Topic started by: juju9999uk on Friday 28 September 07 02:05 BST (UK)
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Hi All,
A father died this year, and he didn't leave a will. His first marriage ended in divorce and the first son was adopted by his ex wife and new husband. It turns out that the first son who was adopted doesn't have a claim to his estate because he was adopted and because of no will.
The second son is illegitimate and has his fathers name on the birth cert and a maintenance order was made against him. Though they didn't have contact with each other the second son takes over the estate.
Just little unfair on the Eldest son don't you think!
Regards
Juju
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Law is a sh*t. I hope this is not edited because of that mild curse.
Scottish law may be different to your situation Juju but I can totally relate to what you are saying.
Having said that, are you talking hypothetically??? ... I'm not rising to the bait unless you have specifics.
Dave
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No in such a case the law is very fair.
The eldest son has been adopted therefore has a mother and father
The second son (due to the death) now only has a mother.
Cheers
Guy
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The law is quite clear, my son adopted his wife's children and had to make a Will as under English law unless you name an adopted child in the Will that child has no claim on the estate. Whether you agree with the law or not Make a Will its cheap enough these days
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Mojaquero
Are you saying that unless my husband and I make a will, the son we adopted when he was a baby will have no claim on the estate, whilst the ones born to us will?
Liz
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When myself and my partner made a will she had to state on hers that she wanted our daughter to go into the care of me if she died first,because we are not married,even though i'm her father i wouldn't neccessarily get custody of my daughter ??? ???
Steve
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if everyone made a will it would make searching for ancestors so much easier!
i had a pack through to make a will after my grandfathers death in 2004 but i never completed it but i am aware that if i died my children would not necessarily live with my partner, their father
my grandfather died intestate so my nan had to wait i think 6 months until she could gain access to his bank accounts etc. i believe this was in case anyone else made claim to his estate luckily no-one did otherwise she would have had to wait a lot longer, and cos she gets his railway pension she can no longer get pension credit.
the law is an ass!
my other nan made a will and so when she died everything was duly distrubuted as per her instructions. its makes things so much easier for the relatives that are mourning after the death.
Liz as you have adopted the child legally then he does have a claim on your estate when you die, but he won't have claim to his biological (sound slike washing powder) parents estate when they die.
Juju if the eldest child did not have contact with the biological (washing powder again) father than it is not unfair and as Guy put it he has an adopted father and a mother and so the law sees it as he does not need anyting from the washing powder fathers estate whereas the other child does now having only one parent. morally the second child should give the first child something but that is entirely up to him.
the thing that gets me regarding children in law is if you are a single parent and you want your new partner to act as parent to the child you have to give up the claim as being 'natural' parent and subsequently adopt that child together. unles of course you and your new partner marry then you can simply re-register them at the time of the wedding under the new surname.
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If everyone made a will . . . and if everyone married before having children . . . these situations would hardly ever arise. Wills and marriages are basically just legal contracts, however they are 'dressed up' . . . they make everything so much simpler for our descendants. Of course it'll never happen ;D
Having said that, one of my ancestors made a perfectly good will, and the legal profession still managed to screw things up so it took many years to wind up the estate . . . but then, they do charge by the hour . . . and that particular solicitor eventually got struck off . . . ::)
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My mother-in-law refused to make a will because she thought it was "tempting fate" then died very suddenly in her 60s - it would have be so much easier if she had made one ...
Carole
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I always use "biological" father when talking about my eldest daughter's (biological)dad. He never saw her until she was 18. My husband is the one she calls "dad", we married when she was five, and as toni said - we both had to adopt her. I was so annoyed when I had to write to ask permission from her "biological" dad for the adoption, even though he was the one who took off with somebody else when I was heavily pregnant.
I couldn't understand why I had to adopt her as well. I didn't know we could have just registered her at the same time as the marriage.
My daughter got married in May, and her dad (not biological) walked her down the aisle. Biological wasn't present - a proud day for both of us :)
As yet, we haven't made a will, but it's something I keep meaning to look into. I think I would probably just cry all the time while I was doing the wording.
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When my aunt died in 1994, we thought she would have made a will because she was so organised.
Wrong! :o
She had every utility bill in chronological order back to the war.
She had a huge address book with all updates etc.
She had a birthday book with all the family in it.
She never forgot a birthday or anniversary.
No will.
We searched the house from top to bottom. We employed a solicitor to try and find the will. Nothing.
It took over a year to sort everything out. She had no children, so siblings were next. If siblings had died then their share was divided among their children. It caused a lot of upset and cost a fortune.
Make a will!
Kooky
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She had a huge address book with all updates etc.
She had a birthday book with all the family in it.
She never forgot a birthday or anniversary.
No will.
i bet that has been very useful in researching your tree!
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I always use "biological" father when talking about my eldest daughter's (biological)dad. He never saw her until she was 18. My husband is the one she calls "dad", we married when she was five, and as toni said - we both had to adopt her. I was so annoyed when I had to write to ask permission from her "biological" dad for the adoption, even though he was the one who took off with somebody else when I was heavily pregnant.
I couldn't understand why I had to adopt her as well. I didn't know we could have just registered her at the same time as the marriage.
My daughter got married in May, and her dad (not biological) walked her down the aisle. Biological wasn't present - a proud day for both of us :)
As yet, we haven't made a will, but it's something I keep meaning to look into. I think I would probably just cry all the time while I was doing the wording.
Hi, i know you can reregister the child in the new married name but not sure if the leagl rights are the same.
and i know about the bit having to get permisson from the biological parent for adoption, esp. when you don't have anything to do with them. and apparently now you can't just get their name changed by deed poll (if it is a child under 18) you have to go to court or wait to see if someone appeals.
and you are having to give up your 'natural rights as the parent to adopt the child. this i feel is wrong.
much easier to marry!
and with regards to making a will it is difficult isn't it who should get what?
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and with regards to making a will it is difficult isn't it who should get what?
Yes, that bit can be a minefield, but even if you only say something simple like "all my estate to be divided equally among my three children", it avoids a lot of legal delays when the time comes . . . and then they can have all the fun of fighting over who gets what.
Could be the start of generations of family feuding . . . :-\
Maybe just leave the lot to charity and disappoint them all . . . ;D
Mike.
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My stingy uncle died about 20 years ago, and left all his money to the monks at Belmont :o
He had always been stingy. He lived with my other uncle and aunt, none of them married, and all in the house they were born in. My poor aunty cooked and cleaned for them both, with no thanks. Neither of the brothers spoke to each other much, communicating through my aunt. The stingy one ate in the living room on a mahogany table with a tablecloth etc. The uncle with a heart of gold and no money sat at a formica table in the kitchen - no tablecloth.
Stingy uncle had a leather chair in the living room, and kept all his lemonade, chocs, biscuits locked up in a wardrobe in his bedroom. When we visited, he would ask if we wanted a glass of lemonade, and he would take a glass up, fill it and bring it back down!!! He had a dog that nobody dared stroke, that he gave chocolate to, and slept on my aunt's bed. We all used to joke that when he died he would leave his money to the dog's home.
Kind uncle would give us lollipops, and stop his bread van in the middle of the traffic to speak to us.
When my aunt died, stingy uncle got his own flat, and lived there until he died, leaving not a penny to his poor brother who had struggled most of his life, and carried on living in the family council home.
We were shocked to find that he had left £90,000 to the monks (he never went to church), just so that none of us got his money. My dad tried to get some money for the kind brother so that he didn't have to struggle so much ( my dad always tried to help him, and we didn't need stingy uncle's money anyway) But he had stressed in his will where the money was to go.
How bitter and twisted was that?
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Toni & Subaru
I'm not sure that just because you marry you can change your child's name (especially if your new husband is not the natural father)
When my daughter was born I was unmarried (1980's) but was advised to put her dad's name on the birth cert. We were told that if her dad's name wasn't on it and we then married, both of us would have to adopt our own child ???.
However, because he was named on it when we did marry 18 months later we did just send a copy of our marriage cert and her old birth cert away and she was re-registered in his name and a new birth cert was issued.
dinie
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Hi Dinie
i know of a couple of cases where the birth has simply been reregisterd in the new name when the marriage took place, in one case the woman married the father the child had her maiden name and so when they married his name was changed to the fathers name. - the birth was reregistered at the same time no sending away certs.
the other case the new husband was not the father of the child yet the child was reregistered with the new married name.
i do not know if they had to get permission from the absent father in the second case.
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Where do you live dinie? Are you in England?
In my case, I wasn't advised to put the father's name of my daughter's birth certificate. I only got the short certificate with my name and her details on it. I didn't meet my husband until she was five years old, and were married shortly after. The day we married, we made a big fuss of her, and made her feel as though it was her day as well. She called him dad from that day, and it was like a ceremony for all three of us. We did change her name that day at school etc. but felt that we had to go through the legal channels to make it concrete
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Hi Subaru
Yes I am in England (Buckinghamshire to be exact) but I am talking about early 1980's so maybe things have changed since then.
I've even checked the BMD entries and there are two for her, one in Q3 1982 and the other in Q2 1984 both annotated to the other (haven't tried sending for both certs though :D)
dinie
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found this it might be of interest.
the late registration of a birth to parents who were later married to each other might record a false birth date to conceal their illegitimacy. a child born out of wedlock was usually registered under the mothers surname, though before 1875 there was nothing to prevent an informant naming or inventing a putative father. later only if the father agreed and was either present to register the birth or his sworn acknowledgement of paternity was produced to the registrar could his name be inserted in the entry. after the legitimacy act of 1926 if the childs parents subsequently married the child became legitimate and his or her birth was frequently registered a second time under the married name.
you can give the child what ever surname you choose nowdays but you cannot put a fathers details on their unless he is present or you present the marriage certificate and then the childis assumed to be the husbands even if it is not.
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That'll be why I wasn't advised to put biological dad's name on the certificate. He definitely wasn't there with me when I registered her, and we weren't married. I can't remember the lady even asking if there was a father though. That was in 1984
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Hi Everyone,
I am not talking hypothetically!!
Bio father was married, child was produced. Though he was not sure the child was his as she was seeing someone else before the marriage ended. After the divorce she married him and they adopted first son.
We were never married and at 7 months pregnant I left for various reasons. He was there for the birth of the child and saw him for about 4 months after he was born. He did not contribute in any way to the childs upbringing and after his family objecting to me taking the child to his house. I didn't return. When the child was about 5 months old he made various threats to take him away from me and that I should not try to claim maintenance from him. Being as I had asked him for nothing up until this time I thought he was being unreasonable, to put it mildly, and took him to court for maintenance. He wanted blood tests and when I agreed he didn't want to know. He said that he would stand up in court and deny the son was his. In court the judge asked his responsibility and he claimed it. An order was made for maintenance and a claim towards birth expences. About 3 months of payments were made and then he stopped. He saw the child on and off for the next couple of years then no contact was made until I married 14 years later. When he asked if I wanted him to sign anything so my husband and I could adopt him. I didn't reply to him. Some years earlier I had Sons surname changed to my maiden name and he wasn't bothered about changing it when I married.
Bio fathers name on the birth cert only means he allowed him to be put in his name. Maintenance order he accepted him as his son. As he stopped making payments before the child was 12 months old life was a little difficult at times, and to me this more than makes up for any hardship he had to suffer as a child. It means he can be educated and equipped to start his own business and hopefuly leave a legacy to his own children.
Have discussed with husband and we have decided to make wills. I have two children from previous relationships and two from marriage. All children have been bought up the same and treated the same, I would not like to think that after all those years they would be treated differently because the law says so. All estates go to each other, if we both die then all estates are split 4 ways between the children.
Regards
Juju
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If no Will then there should in a % of the cases be Probate documents. These are the ones that family can deal with in the County Court Probate system.
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Hi Dancing Master,
What exactly are probate documents?
Regards
Juju
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Probate documents are legally binding and when you go to the County Court with the Death certificate and documents, bank books etc., you get a huge form to fill in all the informaton about the deceased, money, etc., it even involves having to give the value of the furniture they left and their clothing.
Then this form goes to the Probate Service and after about 3/4 weeks you go back to the County Court and swear an affidiavit along with paying the fee (it depends on how much involved in the Probate) and then a very few weeks later you get control of the estate. I was executor with a Will and executor without a Will
I dealt with both myself, and the easiest one was the Probate. It cost a fraction of the charges if you do it yourself.
There was far more information in the Probate documents, but I must admit I like the old type of Wills which were also detailed. not the sort that simply says, I life all my estate to my wife. or charity etc.,
i used the Probate service for the Will and the estate without a Will.
http://www.hmcourts-service.gov.uk/infoabout/civil/probate/index.htm
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Two warning stories:
My Dad died may years ago, and by chance, a few days later so did the husband of Mum's best friend. Dad had made a will, and a month later we were able to access his bank account and get back to some sort of normality. Mum's friend's husband had not made a will, and it took six months to get probate. She had to borrow from friends and family to survive. She had a very distressing time. Make a will!
As many of you know, I had a Civil Partnership ceremony 1 year and 11 months ago (who's counting?!) It invalidated our wills and we had to write new ones. This is not generally known - so if you know of anyone who as done or is about to do this, warn them.
Wills is tricky but very important.
meles
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In actual fact the Probate without a Will I did took 3 months, and the one with the Wlll less than 6 months, but I did myself not hand over everything to someone else to deal with it. When you hand it over to others they can take as much time as they wish.
My cousins who left Wills took in the region of 12 months. and that was only done then my nagging them.
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Maybe our circumstances were simpler. There was just Mum and me, and Dad had left it all to her. The executer was me. Her friend also only had one child, but it still took and age to sort. The executer was a solicitor.
meles
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It all depends how much a person leaves. My mum didn't make a will, she only had about £6000 in savings and I didn't have to get probate at all. I just completed some forms for the bank and National Savings and they sent me cheques for the amounts in question. National Savings did tell me that I had to share the money with my brother - as he's in US and has been for about 45 years, he says he only wants a third - blooming cheek he has only been back about half a dozen times in all those years and if he couldn't be bothered to come over for either dad or mum's funeral (and my son came over from US both times) he can have the money if he comes and gets it.
Liz
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Toni, Subaru & Dinie - your comments are interesting to me.
When I was born my mum and dad were married and so obviously I took their married surname. My dad died when I was a baby and my mum remarried a few years later.
When she remarried, I took the surname of my stepdad. However, my passport etc remained in my birth surname as it was never changed by deed poll. My step dad wanted to adopt me but as my mum would have had to adopt me too and give up her rights as a natural parent she refused to do it.
Anyway, as he brought me up since I was a baby, I call him dad and he is for all intents and purposes my dad.
I have since however changed my surname back to my birth name.
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I've had a will for about 8 years now - least I know things will go where I want them too and it contains instructions for my funeral
Please also be aware that if you live with your partner you are NOT the next of kin and are entitled to nothing of their estate - there is hope that this will change. If you die without a will and you are living with someone your next of kin if you have no children (and they would have to make a claim on the estate as they do not automatically inherit) will be your parents (if still alive) or siblings
My father died without a will but none of us contested the estate and everything went to my mother. I nagged my mother into making a will and power of attorney before she was due to go in hospital for an operation (and didn't I get some grief off her for it) which was lucky because she suffered a major stroke after the operation and ended up in a wheelchair for the rest of her life. We activiated the power of attourney which enabled us to access her bank accounts and deal with things in her name but we still had one hell of a game at times
When she died we knew what was in the will and carried out her requests. She divided her estate between her 3 children and 3 step children, if I had had my way the step children wouldnt have got anything because they more or less abandond her following their fathers death, but that was what she wanted
Please everyone make a will - it will cost you around £60 but believe me it will cost your descendants a lot more time and money to sort it out if you don't at a time when grief is overwhelming you and you cant think straight no matter deal with legal documents
Willow x
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For anyone unsure of the rules on intestacy - here's a link to cover England & Wales
http://www.direct.gov.uk/en/RightsAndResponsibilities/Death/Preparation/DG_10029802
and a Q & A section on HM Revenue & Customs site that also cover Scotland & Northern Ireland
http://www.hmrc.gov.uk/cto/customerguide/page14-1.htm
PS I have made a will!
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When I made my will, I had gone to my daughter's office about something else[ she is a solicitor]
She asked if I had a will and when I replied in the negative, she said, come in sit down it wont take long! It didn't because it is straightforward.
When I asked how much, she said, nothing now, just leave at least £100 to Cancer Research when you die.
I do not know if this sort of arrangement can still happen. It's worth an ask!
Kooky
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AMC25
When my husband adopted my daughter, I didn't look at it as though I was giving up my rights as her natural mother, but that I was making the bond stronger by being her adoptive mother AND her natural mother. It never made me feel any different towards her, or her to me :)
Rosemary