Q: My step-daughter was a single mother of two children whose father is violent and untrustworthy. She recently died unexpectedly and we have been unable to find a Will. Her two children currently live with us as they are only young. My husband (her father) has started dealing with her estate since she named him as her next of kin, but we need some guidance as to what we need to do to sort out her estate.
A: It is always tragic to lose someone close to you, but even more so when they are young and it is unexpected. It is common for the younger generation not to leave Wills, despite having children, as they don’t consider themselves old enough to have to worry about such things. Hopefully the consequences of COVID-19 will change this.
Unfortunately, being named as “next of kin” does not entitle your husband to deal with his daughter’s estate in the absence of a Will. If he has parental responsibility for them, the father of her two children will be entitled to deal with her estate on his children’s behalf, given that they are minors. He will need to nominate someone to act with him, as two trustees will be required. The estate will pass to the two children once they reach the age of 18 and any monies will be held upon trust for them until that time.
Furthermore, their father may also be entitled to custody of the children if he has parental responsibility for them and there is no contrary provision in the form of a Will.
Regardless of age, the situation you describe demonstrates the importance of leaving a Will, appointing properly constituted executors and guardians, in order to avoid the complexities of intestate succession. It is imperative that you take the appropriate legal advice to ensure your stepdaughter’s estate is handled correctly.
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