Father Died With No Will: Is Estate Split Between Offspring?

By: J.A.J Aaronson - Updated: 8 Apr 2015 | *Discuss

 

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Q.

My father died recently leaving no will, all his bank accounts were in joint names with me for the past 10 years or more. My father wanted everything to come to me, however, I have a younger brother, he and my father had not spoken for 8 or 9 years after a falling out. I want to give him something but what does the law say, is he entitled to half of my father's estate?

A.

An intestate death (that is, a death where the deceased individual has not made a will) can cause significant problems, as your case has illustrated. The division of assets amongst dependents and descendants in such cases is subject to intestacy laws, which can result in the property of the deceased being dispersed in a manner different to that in which the individual had wished.

However, the situation is further complicated when, as in your case, the deceased individual had jointly held assets.

The most common form of joint asset ownership is a joint tenancy, in which two parties (normally spouses) jointly own a property. In these cases, the way in which property is passed on is not determined by the laws of intestacy, but rather by the rules of survivorship. In essence, this means that the assets are passed to the surviving joint owner, while avoiding the process of probate.

Joint bank accounts are treated in broadly the same way. To begin with, you must establish what proportion of the value of the account was contributed by your father. The remainder, contributed by you, will remain your property and is entirely unaffected by the death.

The proportion of the money contributed by your father will then be considered part of his estate. As such, it could conceivably be subject to the probate process and therefore to claims by your brother.

From what you have said, it seems unlikely that your brother would be counted as a dependent during the probate process; he would only be counted as such if he was financially reliant on your father and, as they have not spoken for almost a decade, this does not seem likely. As a result, in reality it is unlikely that any probate judge would rule in favour of your brother if any dispute arose.

In most cases, families are able to come to an amicable arrangement without the need for independent adjudication. While your brother probably does not have a claim to half of the estate (although he probably would if the assets were not held in a joint bank account), it is obviously advisable to negotiate a mutually agreeable outcome between yourselves.

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