My brother died earlier this year. He had been separated from his wife for a number of years, and she is in another relationship. They had a young son.
He had no will. The solicitor who was dealing with his separation has said that, as they were not divorced, his wife will get everything.
My brother’s solicitor told me he will not be dealing with my brother’s estate any more, as his wife’s solicitor will be dealing with it. He sent me an email last week stating that the undertaker sent him a bill for the funeral, and asking if I knew the name of the solicitor who is representing his ex-wife.
My question is: who do I send all the rest of the bills to? For example, the flowers for the funeral, the food after the funeral, the headstone?
I have never had to deal with anything like this. I borrowed money from people to pay all these expenses, as my parents do not have much money at all.
Ms ML
There’s a lot of sadness in your letter, alongside the understandable confusion over what happens now. When someone dies at a young age, like your brother, suddenly we find ourselves thrown into a world of the unfamiliar.
Dealing with the minutiae of organising a funeral when we have no experience of such things can be really stressful and bewildering, especially given the speed at which such things generally happen in Ireland.
That’s tough enough when everyone is pulling in the same direction. When you are dealing with fractured families, as in your case, it is even worse.
Let’s walk through a few of the issues here. First up, the lack of a will.
It is not the case that your brother’s estranged wife will not get everything. In fact, what she gets at all will be determined by the nature of her separation from her husband
I’m not going to go back through the whole argument about wills, except to say that your brother’s case clearly illustrates why you are never too young to have one. As soon as you have any assets – a home (albeit with mortgage) – or family, especially children, you really need to have a will. Otherwise, you have no control over what happens your estate when you die.
In situations like this, where you have a marital break-up, with all the discord that can ensure, it is even more critical as your assumptions about who should benefit from your estate may well change.
But we’re too late for that here, so your brother’s estate is at the mercy of the Succession Act and the rules on intestacy.
They are very clear. Where he has a wife and children, the estate is divided with his wife getting two-thirds of the net estate and any children one-third. There is no discretion on this, so your sister-in-law’s solicitor – presuming they are advising on or managing the estate – will need to make provision for a third of your brother’s assets to be held in trust for your nephew, his son until he reaches the age of 18.
So it is not the case that your brother’s estranged wife will get everything. In fact, what she gets at all will be determined by the nature of her separation from her husband.
Whenever a person dies, whoever is managing their affairs has a responsibility to gather together details of all their assets and all their debts, if any
Separation does not automatically disenfranchise someone when it comes to succession rights; it depends very much on the terms of the separation.
It would not be unusual where there is a formal legal separation agreement or an even more formal judicial separation for specific provision to be made regarding succession rights. Quite often, both parties expressly give up their rights to succession from each other’s estate and the court will agree as long as it is happy that everyone is properly provided for.
However, if a couple if simply living apart with no formal legal separation in place, the law will continue to see them as spouses and they will retain their rights to succession.
I suspect this is what happened here. Perhaps they intended to formalise things but he died before that happened. Your brother’s former solicitor must know the status of their separation, so you should check that with him. It is certainly not the case that you need to be divorced to lose out on succession rights.
The other thing to note above is that we have referred to “net estate”. Whenever a person dies, whoever is managing their affairs has a responsibility to gather together details of all their assets and all their debts, if any, and ensure the latter are paid before any payment is made from the estate to the beneficiaries.
Normally, where there is a will, this falls to the named executor in the will. Where there is no will, it is up to a relative or someone else to apply to the courts for a grant of administration.
There is no set legal determination of whom this will be but, in general, where there is a spouse and they are willing to carry out the role, it will be them. Otherwise, it will generally be a close relative – such as a parent, child or sibling.
I am not sure if your brother’s solicitor is aware of whether your brother’s wife (or her solicitor) has been made administrator or is just guessing but, again, it would be worth asking them formally. What throws me is his question to you as to where to send the undertaker’s bill. He should know how his counterpart was in an separation, as there would undoubtedly have been correspondence. Surely, he should be sending the bill to the solicitor, or at least checking with them that they still act for your sister-in-law.
In any case, as you have the details, he can use them. You, too, should send details of any funeral expenses – such as flowers, the headstone and even modest entertainment after any service – as these should be covered out of your brother’s estate.
Your brother’s case clearly illustrates why you are never too young to have a will
The only potential hiccup here is over who did and who should organise the funeral.
Funerals are generally organised by a person’s closest family. Where they are married or in a long-term relationship, this will be their spouse or partner. However, in the case of a separation, especially where there may be residual distance and/or bitterness between the two parties, it would be perfectly usual for a parent, a sibling like yourself or an adult child to organise things.
Which is fine, as long as there are no disagreements. But if there are, things can get messy.
In such cases, it is the personal representative of the deceased who is entitled to make the calls, and that is the executor of the estate or the administrator. If your sister-in-law is the administrator, then it would be her call.
That does not have to present an issue but, in my experience, where there is a coolness between families, it is extraordinary how petty people can be. It doesn’t have to be the case of course, and hopefully will not be here.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice
