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Children's Entitlement to Estate

Legally speaking how much of your estate are your children entitled to.Brian

This is a common question asked on the programme and it just goes to show how important it is in the minds of listeners.

 There are 4 possible answers to this question. Let’s say it is a father who sadly passes away:

1.      He left no Will (died Intestate) with Widow and children. Widow is entitled to two thirds of the Estate and the children receive one third divided equally between them.

2.      He left no Will and his wife died before him. The Estate is therefore divided equally between all the children.

3.      He left a Will (died Testate) with Widow and children. The Will governs who gets what in the Estate subject to the Widow’s entitlement to a minimum of one third (“Legal Right Share”) and while the children have no rights to specific proportion - please see Section 117 Succession Act below.

4.      He left a Will and his wife died before him. Again, the Will governs who gets what subject to Section 117 Succession Act.

Where there is a Will made and a child or children feel badly done-by Section 117 of the Succession Act 1965  lays down a rule that where a parent …..”has failed in his (or her) moral duty to make proper provision for the child in accordance with his (or her) means” the Court can order an amount or share to that child (or children) as the court thinks…….“A prudent and just parent would provide”.

This establishes possible legal rights of the child of a parent who passes on  regardless of what it says in the Will but the Section does not lay down exactly what proportion each child should get. It all depends on the circumstances. For example if a parent died and left the bulk of their estate to a handicapped child instead of dividing it equally between other children who were already well looked after or had successful careers,  it is unlikely that the Law would interfere with that Will. On the other hand if a parent out of spite simply disinherited one or two children leaving everything to the favourite eldest son, then that might be open to challenge. 

It is interesting to note that Section 117 doesn’t confine the Court’s power to an Estate where there is a Will. The section uses the words …..”or otherwise” which means that the section can, in exceptional circumstances,  be used for inteste Estates (no Will made).

If you would like further information on this topic, here are the links for related questions previously asked and answered on the Programme.

Probate for Mother's Estate

Succession Act Legal Right Share

Concern over future of Family Farm

Can children be left out of Parent's Will?

Inheritance rights of child of previous relationship

Can 1 or 2 family members get more from sale Family Home? 

The issues raised in the answer to this NewsTalk listener's question are dealt with in a general way as can only be the case on live radio. Before relying on the advice given in this answer, whether you heard the broadcast or are for the first time reading the issues here please do not rely on the broad advice given. For a detailed professional opinion please consult a qualified legal advisor and for further details read our disclaimer on the Home Page.

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