Probate advice
Discussion
Hi All,
I’m hoping for some advice and possibly recommendations.
I’ll try and keep it factual and no personal information.
- Sadly one of our parents passed away.
- Sibling and I are both executors of one of our parents wills. Parents are separated and no legal claim from living parent.
- Sibling has applied for probate in their name only and put me on power of reserve. I was not aware, nor agreed to this.
- Sibling and I do not have great relationship. Has been like this for a while.
- Sibling has advised they want to live in property that is left to us both and rent out their own flat that they own. Avoiding paying me rent I assume. This part about rent is only speculation on my part. But based on the I’ll do as I please comment and the power reserved.
- I’ve asked for mediation to prevent legal proceedings and be reasonable. Response to this take 36 hours on average and has resulted in me missing appointments for this week that I’ve been offered and now sibling had advised they are not available until the end of next week. So I’m feeling delay tactics.
- I’ve downloaded both the probate and will and this shows the power reserved but no mention of my name but I’m the other person on the will. I’ve also obtained the land registry information showing the house still in parents name but this doesn’t mean a change isn’t in process.
I feel like I’ve been reasonable in suggesting mediation but as I write this down I can’t help but feel legal is the only way to go.
Has anyone been through similar?
Did mediation work?
Any solicitor recommendations?
Thanks in advance.
I’m hoping for some advice and possibly recommendations.
I’ll try and keep it factual and no personal information.
- Sadly one of our parents passed away.
- Sibling and I are both executors of one of our parents wills. Parents are separated and no legal claim from living parent.
- Sibling has applied for probate in their name only and put me on power of reserve. I was not aware, nor agreed to this.
- Sibling and I do not have great relationship. Has been like this for a while.
- Sibling has advised they want to live in property that is left to us both and rent out their own flat that they own. Avoiding paying me rent I assume. This part about rent is only speculation on my part. But based on the I’ll do as I please comment and the power reserved.
- I’ve asked for mediation to prevent legal proceedings and be reasonable. Response to this take 36 hours on average and has resulted in me missing appointments for this week that I’ve been offered and now sibling had advised they are not available until the end of next week. So I’m feeling delay tactics.
- I’ve downloaded both the probate and will and this shows the power reserved but no mention of my name but I’m the other person on the will. I’ve also obtained the land registry information showing the house still in parents name but this doesn’t mean a change isn’t in process.
I feel like I’ve been reasonable in suggesting mediation but as I write this down I can’t help but feel legal is the only way to go.
Has anyone been through similar?
Did mediation work?
Any solicitor recommendations?
Thanks in advance.
First place to start is contact the Probate Office (Courts and Tribunals Service Centre) and record that you ARE NOT reserving your power of attorney. That puts the process on hold.
Secondly remind sibling that until probate is granted, neither of you have legal title or use of what are at this time the estate assets.
Everything after depends on how reasonable / rational the other person is.
Secondly remind sibling that until probate is granted, neither of you have legal title or use of what are at this time the estate assets.
Everything after depends on how reasonable / rational the other person is.
rattyuk2000 said:
First place to start is contact the Probate Office (Courts and Tribunals Service Centre) and record that you ARE NOT reserving your power of attorney. That puts the process on hold.
Secondly remind sibling that until probate is granted, neither of you have legal title or use of what are at this time the estate assets.
Everything after depends on how reasonable / rational the other person is.
The OP says "I’ve downloaded both the probate and will", so it's too late.Secondly remind sibling that until probate is granted, neither of you have legal title or use of what are at this time the estate assets.
Everything after depends on how reasonable / rational the other person is.
geeman237 said:
Is the wording on the will for the executors to be joint or separate? I think if there is more than one executor identified, the will defaults to joint decisions/agreement, but I stand to be corrected.
I suspect you're confusing a Will with a Lasting Power of Attorney. Wills never specify whether executors are to act jointly or separately.In order for the sibling to apply with power reserved they were obliged to serve you with a formal notice that they were doing so. I assume they didn't.
But as an executor with power reserved you can apply to the Probate Registry for a new Grant of Probate in which you're named as executor - it's known as `Double Probate'.
Ah, I read OP point 3 as in the present tense, and missed later. Apols
Discussion with Probate Office and sibling still applies, even more so, since a fraudulent application appears to have been made.
I recently executed estate of my late mother, One named person on the will (brother of mother) is resident in Australia and he agreed to be Powers Reserved. So I know my way around the process.
Key document here is probate application form PA1P sec 3.6 page 12 where the applicant confirms named executors on the will, and their "Reasons for executors not applying"
Reason C - "If any executors are having powers reserved, you MUST notify them of the application in writing"
Applicant subsequently has to sign the form, "Legal statement" page 29. against the warning "Criminal proceedings for fraud may be brought against the undersigned if it found that the evidence provided is deliberately untruthful or dishonest."
Google PA1P, it's readily available on the .gov.uk website.
Discussion with Probate Office and sibling still applies, even more so, since a fraudulent application appears to have been made.
I recently executed estate of my late mother, One named person on the will (brother of mother) is resident in Australia and he agreed to be Powers Reserved. So I know my way around the process.
Key document here is probate application form PA1P sec 3.6 page 12 where the applicant confirms named executors on the will, and their "Reasons for executors not applying"
Reason C - "If any executors are having powers reserved, you MUST notify them of the application in writing"
Applicant subsequently has to sign the form, "Legal statement" page 29. against the warning "Criminal proceedings for fraud may be brought against the undersigned if it found that the evidence provided is deliberately untruthful or dishonest."
Google PA1P, it's readily available on the .gov.uk website.
Birdster
Am I right in assuming the estate was split equally between you and your brother?
If so, it doesn't really matter who the executor is. They have a statutory duty to distribute the estate in accordance with the will. If they don't they can face criminal charges which can result in jail time. It's called maladministration of an estate. It is rare the police will be interested, but the fact your brother breaks criminal law makes any civil case you bring a slam dunk for you to win. If you do win a valid civil case the upside is you'll normally recover your costs from the executor, not the estate.
With regard to your brother's intentions, if he wants to keep the house to live in that's fine, but he'll have to buy out your half of the house. He can't just unilaterally decide to keep the property and move in. If he does, see previous paragraph for implications.
Another point to note is an executor has a year in which to settle the estate. The year is set in statute and is ruled to end one year after the death of your parent. If the executor does drag their feet for no good reason again, whilst costly, you will win any case you bring for maladministration of the estate. Again, costs will be awarded against your brother.
Taking all the above on board I've found just informing an executor of the legal ramifications of the actions may be enough to get them to act correctly.
Am I right in assuming the estate was split equally between you and your brother?
If so, it doesn't really matter who the executor is. They have a statutory duty to distribute the estate in accordance with the will. If they don't they can face criminal charges which can result in jail time. It's called maladministration of an estate. It is rare the police will be interested, but the fact your brother breaks criminal law makes any civil case you bring a slam dunk for you to win. If you do win a valid civil case the upside is you'll normally recover your costs from the executor, not the estate.
With regard to your brother's intentions, if he wants to keep the house to live in that's fine, but he'll have to buy out your half of the house. He can't just unilaterally decide to keep the property and move in. If he does, see previous paragraph for implications.
Another point to note is an executor has a year in which to settle the estate. The year is set in statute and is ruled to end one year after the death of your parent. If the executor does drag their feet for no good reason again, whilst costly, you will win any case you bring for maladministration of the estate. Again, costs will be awarded against your brother.
Taking all the above on board I've found just informing an executor of the legal ramifications of the actions may be enough to get them to act correctly.
LemonParty said:
One thing I would be doing is signing up for the Land Registry Alert service, so you are warned if any change is made to the title of the house.
Good point. At the moment it's taking Land Registry about 5 weeks to process transfer paperwork. But I don't know if they trigger the alert upon receipt of paperwork or processing of paperwork. In the past notification of transactions was very quick.uknick said:
Birdster
With regard to your brother's intentions, if he wants to keep the house to live in that's fine, but he'll have to buy out your half of the house. He can't just unilaterally decide to keep the property and move in. If he does, see previous paragraph for implications.
That's what stood out for me in the OP - astonishing the sibling thinks it could work any other way!With regard to your brother's intentions, if he wants to keep the house to live in that's fine, but he'll have to buy out your half of the house. He can't just unilaterally decide to keep the property and move in. If he does, see previous paragraph for implications.
uknick said:
If so, it doesn't really matter who the executor is. They have a statutory duty to distribute the estate in accordance with the will. If they don't they can face criminal charges which can result in jail time. It's called maladministration of an estate.
I'm afraid that this is simply not true. There is no such crime as `maladministration of an estate', and if an executor does administer an estate incompetently it's not a criminal offence unless there is deliberate fraud involved. Even then it would be rare for the police to prosecute if a civil remedy was available to rectify the wrongdoing, which it usually would be.
"Another point to note is an executor has a year in which to settle the estate. The year is set in statute and is ruled to end one year after the death of your parent. If the executor does drag their feet for no good reason again, whilst costly, you will win any case you bring for maladministration of the estate. Again, costs will be awarded against your brother."
Again, this is not the case at all. The `executor's year' as it's known is the minimum time that an executor has before they are obliged to even start distributing the estate. In other words, the executor cannot be subjected to any claim for delay within that year.
But many estates take far longer than a year to administer, even where the executor does everything exactly as they should. And yes, in many cases executors do `drag their feet for no good reason', but that alone does not give beneficiaries a right to sue them for `maladministration of the estate', and if they were stupid enough to bring such a case without strong justification they might end up having to pay costs rather than be awarded them.
BlackWidow13 said:
As a departed poster in these parts used to say: IAALBIANYL.
This isn’t my field. But having watched a few threads on this topic, I’ll give you some free advice: the only poster who’s posted so far who should be listened to is Pro Bono.
Because their advice is free.This isn’t my field. But having watched a few threads on this topic, I’ll give you some free advice: the only poster who’s posted so far who should be listened to is Pro Bono.
Pro Bono said:
I'm afraid that this is simply not true. There is no such crime as `maladministration of an estate', and if an executor does administer an estate incompetently it's not a criminal offence unless there is deliberate fraud involved.
So what is this referring to"The executors or administrators appointed to administer a deceased’s estate are responsible for collecting and getting in the real and personal estate of the deceased and administering it according to law under section 25(a) of the Administration of Estates Act 1925 (AEA 1925). They must therefore administer the estate according to both statute and the common law with any maladministration or wrongful administration rendering the executors or administrators liable to the legatees or beneficiaries."
Pro Bono said:
Even then it would be rare for the police to prosecute if a civil remedy was available to rectify the wrongdoing, which it usually would be.
I agree, isn't that what I said? But there have been cases such as Caroline Woodhouse in 2013. Rare, but it does happen. In the OP's case if the brother refuses to buy out the brother, transfers the house in to his name and goes on to retain all the rental income mentioned, i.e. using assets in their own business is that in breach of the statute?Pro Bono said:
Again, this is not the case at all. The `executor's year' as it's known is the minimum time that an executor has before they are obliged to even start distributing the estate. In other words, the executor cannot be subjected to any claim for delay within that year.
You're right I got that wrong.Birdster said:
Hi All,
Has anyone been through similar?
Did mediation work?
Any solicitor recommendations?
Thanks in advance.
I’ve been through a bit of this. Has anyone been through similar?
Did mediation work?
Any solicitor recommendations?
Thanks in advance.
The most likely way you will get this done is by having some kind of legal assistance, not because the process of probate is so difficult but you will continue to need a referee between the two of you and a guide to what has to be done and what is legal and in compliance with the will.
I wouldn’t count on mediation doing much unless the mediator has the implied authority of being legally qualified in which case they may as well be involved in moving the process forward which takes you back to a normal probate solicitor; I suspect that mediation is a fairly regular part of their job whether they like it or not.
Ideally the two of you would jointly appoint a solicitor to assist and represent you both but if your sibling is unwilling then it would probably be best to get your own to begin to force the issue.
I would imagine the steps described above by other posters would be the first moves towards forcing your sibling to understand that you will be equally involved and that they have to follow a proper process but ultimately if they are not willing or able to act in a reasonable manner it becomes fairly expensive and very time consuming.
Hi All,
OP here. Thank you for all the replies. I’ll respond to the key points from the replies but if I’ve missed you then please accept my apologies. Hopefully I’ve covered all the main bits.
I’ve contacted the probates office who advised me that I need to contact that the Newcastle probate office for this sort of situation and that I’d like to ask for accounts of the estate from the executor. This email to be sent.
Parents not married. Never were. House in name of parent who passed away.
The will is for both of us to be executors. Estate split equally.
With power reserved I’ve been advised here and from reading online that I need to apply for double probate. Not a simple process without the original will etc. I believe a solicitor is required for this but I need to read up on this more today.
Regarding PA1P sibling completed the online submission and I started to carry out an online submission of my own today. When selecting power of reserved it will send an email to the person with power reserved. So I think that satisfies the notifying me in writing. I can’t remember if I did receive this and I certainly didn’t agree to it.
I’ve signed up to the land registry alert service.
They have taken possessions out of the house. I sent a photo to them asking them to return these. They returned some but not all and removed themselves from the friends group chat that I used.
I have evidence of them using some of the money to pay to themselves and have told me that they ‘owe’ it to me. Whilst leaving other debts from the estate unsettled.
Sibling has made demands that I must meet if I still want them to attend mediation. Showing that clearly they aren’t being reasonable.
I think my options as of the moment are;
Get myself granted double probate. That seems to be a good way to protect myself.
I’d like to think they aren’t as stupid and vicious as to put the house solely in their name, remortgage it, sell it or some combination of the above as this clearly wouldn’t be them carrying out their role as executor correctly and would be seen as fraud. If I understand correctly this would lead to costly legal proceedings but I’d hope a judge wouldn’t rule in their favour. A costly process for both parties.
I think that they can legally move into the house and live there (morally questionable) and it’s just a case of me having to spend money to make it that they pay rent, move out, one of us buys the other half of the house, or sell it completely. Most likely a more costly process for myself.
I have a solicitor who called me yesterday and they will prepare a cost estimate for me to sort the double probate and also write to my sibling to say ‘stop being silly we don’t agree to you moving in’ let’s do this fairly.
I’m probably being a soft touch and really don’t want to take legal action but I feel now that I have been backed into a corner and if I have to spend some money to protect a larger amount of money (I hate referring to it as money but the reality is that is what inheritance is) it’s not an ideal place to be but better than me trying to do it, getting it sent back and delaying more time.
Pro Bono thanks for reaching out.
Thanks all. Just sat down and had a cry. Still miss my parent so much and just can’t fathom people acting like this.
OP here. Thank you for all the replies. I’ll respond to the key points from the replies but if I’ve missed you then please accept my apologies. Hopefully I’ve covered all the main bits.
I’ve contacted the probates office who advised me that I need to contact that the Newcastle probate office for this sort of situation and that I’d like to ask for accounts of the estate from the executor. This email to be sent.
Parents not married. Never were. House in name of parent who passed away.
The will is for both of us to be executors. Estate split equally.
With power reserved I’ve been advised here and from reading online that I need to apply for double probate. Not a simple process without the original will etc. I believe a solicitor is required for this but I need to read up on this more today.
Regarding PA1P sibling completed the online submission and I started to carry out an online submission of my own today. When selecting power of reserved it will send an email to the person with power reserved. So I think that satisfies the notifying me in writing. I can’t remember if I did receive this and I certainly didn’t agree to it.
I’ve signed up to the land registry alert service.
They have taken possessions out of the house. I sent a photo to them asking them to return these. They returned some but not all and removed themselves from the friends group chat that I used.
I have evidence of them using some of the money to pay to themselves and have told me that they ‘owe’ it to me. Whilst leaving other debts from the estate unsettled.
Sibling has made demands that I must meet if I still want them to attend mediation. Showing that clearly they aren’t being reasonable.
I think my options as of the moment are;
Get myself granted double probate. That seems to be a good way to protect myself.
I’d like to think they aren’t as stupid and vicious as to put the house solely in their name, remortgage it, sell it or some combination of the above as this clearly wouldn’t be them carrying out their role as executor correctly and would be seen as fraud. If I understand correctly this would lead to costly legal proceedings but I’d hope a judge wouldn’t rule in their favour. A costly process for both parties.
I think that they can legally move into the house and live there (morally questionable) and it’s just a case of me having to spend money to make it that they pay rent, move out, one of us buys the other half of the house, or sell it completely. Most likely a more costly process for myself.
I have a solicitor who called me yesterday and they will prepare a cost estimate for me to sort the double probate and also write to my sibling to say ‘stop being silly we don’t agree to you moving in’ let’s do this fairly.
I’m probably being a soft touch and really don’t want to take legal action but I feel now that I have been backed into a corner and if I have to spend some money to protect a larger amount of money (I hate referring to it as money but the reality is that is what inheritance is) it’s not an ideal place to be but better than me trying to do it, getting it sent back and delaying more time.
Pro Bono thanks for reaching out.
Thanks all. Just sat down and had a cry. Still miss my parent so much and just can’t fathom people acting like this.
Whilst you can do this all on line/by yourself, and generally is not rocket science - by virtue of your questions - get proper legal assistance.
It may not be cheap - but it will be money well spent.
A fellow sibling as executor not playing the game/not understanding is only going to lead to problems if not stamped on the head hard and fast.
I see you are getting a quote - dont mess round quibbling on the last few pounds on the hourly rate.
It may not be cheap - but it will be money well spent.
A fellow sibling as executor not playing the game/not understanding is only going to lead to problems if not stamped on the head hard and fast.
I see you are getting a quote - dont mess round quibbling on the last few pounds on the hourly rate.
Don’t forget that the first few stages are not really legal action, you are just making it clear that you are gearing up and ready to enforce your rights.
If they don’t see sense immediately then at some point they will have to get their own legal advice and will realise that legal action, courts and judges just reduce the size of the pot that they will eventually take half of.
If they don’t see sense immediately then at some point they will have to get their own legal advice and will realise that legal action, courts and judges just reduce the size of the pot that they will eventually take half of.
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