Death of a child: a guide for divorced parents
The death of a child deals both parents a devastating blow, regardless of their marital status. This tragedy however, can be made all the more stressful by warring parents, at a time when emotions are running high.
Both biological parents have the same right to apply for a Grant of Letters of Administration and it is during this process that the difficult discussion regarding funeral arrangements will take place.
Hopefully, the grieving parents will agree on the details of the funeral but sadly, some do not. In this instance, the decision will then lie with the court, which will attempt to deal with the matter as quickly and fairly as possible.
In Fessi v Whitmore, a 12 year old boy was the victim of a tragic accident. His father had been his main carer since his parents were divorced, and the pair had recently moved away to a new area. The father wanted his son's ashes to be interred close to their new home, whilst the mother requested that they be scattered close to the old family home at Nuneaton, where the boy's paternal grandparents' ashes had already been scattered.
The court in this instance reached a decision which was a compromise between the two, and the boy's ashes were finally interred at Nuneaton Crematorium, where all family members could come to pay their respects.
In another recent case, a bereaved mother was kept in a state of grief, whilst her son's ashes were retained at a funeral parlour for over a year, under the instruction of the father, who did not want them to be released to his former partner. It was only following legal intervention that the boy's ashes could be released, and he can now finally be laid to rest.
Where a person doesn’t make a will, it can often cause tension and squabbles among beneficiaries after their death.
This is particularly so where the deceased leaves behind a considerable amount of money, either in cash or tied up in trusts or property.
Such was the case when a wealthy widow died, leaving not just a property but an entire estate. She had two sons, one of whom still lived on the estate, independently.
Although the rules of intestacy state that both brothers should have been entitled to administer and benefit from the estate mutually and equally, what in fact happened was that without any discussion, one brother applied for the grant of letters of administration, without mentioning the other.
To be sensible and fair, the two brothers, once equally responsible for administering the estate, would then have had the additional discussion of how they wanted to divide the assets between them.
Instead, the second brother was both confused and anxious about whether or not he would be involved in the process at all and how to go about asking for a share of the estate, without upsetting the other brother.
The second brother was advised that if his sibling continued to refuse to cooperate, then legal action should be taken and ultimately, his brother could be removed as personal representative.
All of this was of course completely unnecessary and was a split which wouldn’t have happened, if their mother had quite simply made a will, detailing who should receive what as opposed to dying intestate in the UK
The role of executor brings with it a whole host of legal and moral responsibilities. Knowledge or experience of the probate process is extremely useful but for a first time executor, the pitfalls of ensuring that all debts are paid can be hazardous.
The first stage of the process is to go through all the deceased’s paperwork to pinpoint any outstanding bills, creditors, bank accounts, savings accounts and funds. Monetary gifts or additional income can often be identified through bank statements and will need to be declared to HMRC.
Next, turn your attention to their home. We often advise that it’s best to bring in a professional home valuation team, who can value the entire contents much more accurately and quickly than an executor.
If you’re not sure of what income they received and regular outgoings, then it may be wise to ask someone closer to the deceased who might have more information. An excellent defence tactic is to advertise in the press for anyone who feels they may have a claim to the estate.
Of course, all this takes time and effort, so we always recommend that executors use the services of a professional probate practitioner, who can shoulder the burden of this often enormous and stressful task.
Powers Granted in Letters of Administration
If a close relative has died intestate, meaning that they did not make a will, you may need to apply for a grant of letters of administration. This will enable you to gain access to your deceased relative’s assets, so that you can deal with their estate.
In certain circumstances, letters of administration are not necessary. If your relative left assets of under £5000 after the funeral fees were paid, you may not need to apply for a grant. Or if the only assets are shared property, or money in joint bank accounts it may not be required.
Relatives entitled to apply for a grant of letters of administration include the spouse of the deceased, their parents, or their children, and they must send the application to the probate registry. This can be a daunting experience; in addition to grieving the death of a loved one, you will need to deal with the complications that dying without a will can cause.
When someone dies intestate, it is often far more difficult to deal with the distribution of their estate. Some situations complicate the procedure even further. For example, if children under the age of 18 are entitled to benefit from the inheritance, more than one person must apply.
Tax can cause additional complications when someone dies intestate, there could be a hefty bill to pay, without any plan in place to lessen liability. It is possible to alter intestacy to mitigate tax, provided that everyone affected agrees. As inheritance tax can be complicated and confusing, it is advisable to instruct a legal practitioner to work on your behalf. They can apply for a grant of letters of administration and help you to deal with the distribution of the estate.
If the assets of your deceased relative have a large financial value, the laws of intestacy set particular rules on how you must distribute the assets. For example, if a spouse dies intestate and the inheritance exceeds a certain sum, other close relatives may be entitled to a portion of the deceased’s estate.
It may be possible to appeal against the way the assets are to be distributed. For example, you may be a close relative of the deceased and you do not believe that you are getting your fair share of the estate. Also, if you are a common law partner, that was financially reliant on the deceased, you may be entitled to appeal.
Appeals can be complicated and you must make an application within 6 months. If you intend to appeal, it would be wise to seek advice from a legal practitioner before the letters of administration are issued.