Probate Question – Uncoperative Executors.

(Client question) Your tips are very useful. Perhaps you could include something to cover the legal aspects of the following current scenario with uncooperative executors ……….(TPD: These situations where family conflict appears inevitable with uncooperative family members as executors who have no clear idea of what is allowed and what is potentially criminal – it is even worse when there has been a Power of Attorney in place and the attorney has not been fully aware of what they are allowed to do.  The rest of the letter has been amended so that the family involved cannot be identified!)

More on probate disputes.

I currently find myself in a bizarre situation following the death of my Mother in September, where I am seriously considering putting a Caveat in place to stop Probate.There are four children all well over 18. Two of which do not get on with the other two!Prior to her death in July 2011 an LPA was put in place giving power to a brother and sister who live near my mother. Myself and another sister who do not get on with them and live further away were excluded without consultation. My Brother also has a signatory ability on my Mothers bank account………Fine, I understood the need at the time.Again without consultation, they immediately put Mothers house up for sale and disposed of the contents prior to her death. Some of the contents were mine as I was born 20 years after the other three who are all now aged late 70’s. I was not told this was happening or given a chance to take my stuff. By chance, because I was suspicious I had a look on Rightmove and discovered what had happened!…………………..BUT surely the contents if they were sold form part of the value of the Estate? (Yes they do – or at least the cash representing their value if they had been sold.)She died at home and I heard 3rd hand the following day as did my sister.Since her death, I contacted my brother and asked about her Will. Firstly I was told all 4 of us were equal beneficiaries. 24 hours later having pushed for more information I was eventually told that we were also all executors. Since then I have repeatedly asked for a copy of the Will as has my other sister, and so far we have been refused. I know we have a legal right to see the Will. He refuses to speak to my sister.  (Yes you do as an executor. I feel a Caveat coming on!)I asked about the funeral arrangements and was told she would be cremated at Brighton. Mother had stated many times that she wanted her ashes buried with my Father in Carlisle. My brother refused to do that so I said that I would take care of it if they wouldn’t. I started to make the arrangements and suddenly 2 days later he decided that he was doing it. Fine! (Funeral arrangements are technically the responsibility and decision of all executors.)I rang my sister to ask how much it was costing. He let it slip that he and his wife together with my sister and her husband were going so the cost would include flights, Hotel rooms, car hire and airport transfers. I asked how he was paying and he said he’d pay with Mother’s bank account! I asked if he had told the Bank that she was dead and given them a copy of the death certificate…..reply “NO”. I then told him that if he has withdrawn money since her death and not told the Bank then that is Fraud. Again there was no consultation with two Executors/Beneficiaries. (An attorney’s rights die with the person whose Power of Attorney it was – executors have the right to reasonable expenses for carrying out their duties, but the bank will not pay for anything other than the funeral and then only if they agree in advance and pay the undertaker directly. As you say, such an action would not be legal.  I don’t think attending the funeral really counts as a duty and certainly not paying for anyone else to attend unless specifically authorised by the Will.)I told him I didn’t know if he could claim expenses back from the estate or not. But why was I prepared to bury her ashes in Carlisle at my expense and now he expects my sister and I to pay for 4 people to travel to Carlisle because he thinks he can do what he wants?

WHAT I HAVE DONE SO FAR TO COUNTER THE ABOVE :-

1) I’ve contacted the Registrar and ordered three copies of the death certificate. As soon as they arrive today/tomorrow I will be handing one to the Bank to stop my mother’s account.2) I’ve done a standing search for the Probate and Will so that when they become public documents I can compare the two Wills to make sure they have not been switched. Should I ever get sight of the Will prior to the Probate application? (You could make it clear to the Registrar that you would not stand down as  executor and have not been asked too if the solicitor is unable to resolve the situation.)3) I have located the Solicitor they intend to use for the administration of my mother’s Estate. The same one that did the LPA. I have spoken to the Solicitor and raised my concerns as per the above info and told him I had more than sufficient grounds to put a Caveat in place. So what is he going to do about it? He told me to ring him on Monday. He also advised I contact the Registrar ref the Bank…….Ha…Already done! (The solicitor should sort them out, and make them behave properly, at risk of losing the instructions where uncooperative executors won’t cooperate no matter how clear it is made to them that they are in the wrong.)4) I have located the company that wrote the Will. They will give me a copy of their copy on receipt of the Death Certificate providing that I am an Executor. So I will request that.5) I have informed the Estate Agent that the house will be subject to Probate. They had not been told either! (You might want to do a Land Registry Search to check that the house is still in your mother’s name! It is not unknown for attorneys to transfer a property for the wrong reasons – though there can be sound reasons too.)6) The Caveat application is ready to be posted.7) I’ve looked into the cost of employing a Solicitor…..BUT £200 – £300 + VAT (more now) for an initial consultation to probably tell me the above points 1) to 6) is too much IMHO. I expect the cost beyond that would be unthinkable and more than any financial gain by doing so.   

Uncooperative Executors Probate Answer – in broad terms only!

Sounds like you might need to consider involving the police, though they will probably be too busy and consider it a Civil matter, and refer you to a solicitor (us, hopefully!).Your stuff has been stolen even if inadvertently,  and they seem to be acting illegally in using the bank account after she is dead.  Sending the Death Certificate to the Bank will at least stop that.The bank would no doubt be willing to stump up for the funeral in the proper way, if her bank account has sufficient in it. But I would be surprised if they would willingly pay for the trip.  I am pretty sure they would not even consider paying for the executors, never mind their partners.The solicitor cannot act without the agreement of all four of you, and the actions so far of the other two are illegal without the consent of the other two – assuming you can get hold of the Will, or it is shown to the solicitor. Unless they have notified you that you are having your power to act as executor “reserved.” You have made it clear to the solicitor that this is not acceptable, and should confirm that in writing.  Bear in mind that the solicitor’s time is an expensive way of refereeing family arguments, so try to come to some agreement.Probate cannot be normally granted (except if power has been reserved) unless all 4 executors take part, even if it is to decline the role.Perhaps it would be best to put your concerns to the family and solicitor in writing, and try to open the way to a reasonable way forward and not a deepening and permanent family rift, which is so very common when things are handled clumsily as your siblings have done. Just try not to make it worse!Steve

Executor Stealing from the Estate – what can I do?

Misappropriation (or theft) can take many forms and is often a result of a misunderstanding by the executor of their role which is to protect the estate, comply with the legal formalities and distribute the estate in accordance with the Will. Sometimes executors do have some discretion, but it is not uncommon for them to decide they have far more discretion than they do.  This can easily lead to fraud or theft by misunderstanding and a simple letter pointing out the duties of an executor may be adequate to resolve the situation.Of course, it may be that the Will does not say what you think it does, and the executors actions are perhaps not wrong.

• Be careful – it is probably best to seek the advice of a qualified professional before diving in at the deep end. If you are wrong, it could be you who is in trouble.
• It is may be best to ask the executor nicely first but that is your choice. Probably most executors will react badly to even the hint of such concerns. You may wish to seek advice from a Contentious Probate specialist.
• If the fraud started with the preparation of the Will, see Contentious Probate.
• In theory, you can report to the Police, but generally, I understand they consider it a civil offence.
• Very often the problems may have arisen while the deceased was alive and under a Lasting Power of Attorney, in which case you can ask the Office of the Public Guardian to investigate.
• You can apply for the court to remove an executor and appoint a new one. Technically they have failed to administer the estate correctly and there is a clear conflict of interest.
• Alert any institutions to your concerns – again, be very careful of the wording.

Uncooperative Executors. More on Probate Disputes.                        More on Problems with Executors

How can I find out if a Will has been registered?Answer:Sorry about your Dad.

1. I am not sure if you can’t find the Will (seehttps://theprobatedepartment.co.uk/how-to-find-a-lost-will/.) We do very often get questions about lost Wills, and their loss can cause all sorts of problems.  Many are destroyed by people who don’t like them, many are so out of date as to be ridiculous.   So we designed a program to keep Wills (etc) under review and secure, and we set up a separate company (Will Custodian Ltd) to run the system.  It is very simple, costs most people the price of a coffee a month and help its’ Members to keep up to date with relevant changes in the Law, Tax and (of course) family circumstances.  Any or all of those can mean that a review of Legal Planning is needed.  If you would like to learn more about the Peace of Mind Service, click the link.2) Or think someone else might have been granted Probate on it (it would be very quick to have done so already in around a month) in which case try here: https://www.gov.uk/search-will-probate3) Alternatively, you might wish to prevent anyone else from attempting to prove a Will you might consider was false/ made under pressure etc etc, by way of a Caveat in which case see here: https://theprobatedepartment.co.uk/contest-a-will/.

4) If it turns out that there is no valid Last Will, then the Rules of Intestacy will apply, but the situation might change dramatically if there is the possibility of a claim under the Inheritance Act and its’ latest update which significantly widens the class of people who can claim that they were not properly provided for under the Will or lack of Will.

Happy to have a brief chat if it helps, and I hope I have answered the question!

My probate question: I wonder if you could help me my wife passed away on the 18th January – we separated 12 years ago but never divorced.My son had a joint bank account with her, which I have been told its frozen but he has taken money for funeral costs out.My wife has other bank accounts just in her name but don’t know which banks or building society they are from what I would like to know I am I entitled to anything, I am very hard up and 87? I was wondering if I could get legal aid to help?JM (details changed to protect identity)Probate Question reply (made on the information given, and will not always apply).The first thing anyone should do when separating to write a new Last Will.  However, it is too late for that sadly.Chances are that you will be entitled to all or most of your wife’s estate as you were still legally married. UNLESS there was a formal judicial separation, which is unusual.There is no issue with funeral costs coming out of the bank account, but the chances are that bank account may pass automatically to you son outside the estate if he was listed as joint owner rather than just as a signatory. This is a common mistake, usually made unintentionally, but in some cases it disinherits all the other beneficiaries as a joint account (rather than one with signing rights for a third party) passes automatically to the surviving joint owner.I don’t believe you can get legal aid for probate work, but we do provide a low cost service or offer our www.DIYprobateUK.com site.You could also make an appointment to talk to Citizens Advice, but it may be that all that is necessary is to write to your son enclosing a copy of our Intestacy Guide which I have attached asking for the full details of her estate so that you can obtain probate, assuming it is needed.If you feel that he might attempt to deal with probate improperly, you can make arrangements to enter a note at the Probate Registry to prevent that (we can help with the formal process). As the legal next of kin, you have the right to apply for probate, not your son.You probably could do with help, but it does depend on the value of your wife’s estate as to whether it is worth it.Our  fees are much below most lawyers, so do feel free to come back to us should you wish to. Nothing in this email should be taken as advice without a full paid review of your situation.  Probate disputes.

 Widows Inheritance Claim Fails

We are often asked who has a right to see the Last Will and testament and the law in this area is rather peculiar, and if the author ran the country, many laws in the area of estate planning would be reformed to bring in some common sense.  But I digress…                        More on Probate Disputes.  Probate Claim Checker.  Probate Quotes

Probate Question: My Stepmother won’t let me see the Will.

My Dad passed away at the end of June. When he made his will several years earlier he asked me to be executor of his will and I agreed. Not understanding much I didn’t ask his wife, my stepmother, where I would get the will from to find out what he wanted until after he was cremated. Her reply was that she was sole executor and beneficiary and I would only have to step in only if she preceded him. She never let us see it. Being naive I thought I had no reason to disbelieve her. Just lately things seem to not be adding up and to top it off the funeral directors have contacted my brother and me to say she has not paid the funeral bill. I just would like to know where we would stand and if it is too late to see the will and where we would have to go to obtain a copy because we knew she will refuse to let us see it herself. Will we need to apply to probate or are we too late?

Probate Answer – can you see the Will?

If your dad married after the Will was made, it was probably invalidated and he may have made a new one.If not, if he owned the home in his sole name, probate will be required, and once that is granted you will have the opportunity to see the Will once that is completed. But unless the executors chose to let you see a copy, you will have to get a copy Will the same as any other member of the public can once probate has been granted.   To see how to see the Will after probate has been granted, click the link.  If probate is not required, then you won’t be able to obtain a copy unless the executors decide to give you one.If the property was owned with the step mother, then it will depend on the type of ownership, as one way the step mother would inherit automatically (so no probate needed) the other way she would not and probate would be required.See http://www.theprobatedepartment.co.uk/your-probate-questions/inherit-the-house/The other alternative is to contact the person who made the Will, and they may confirm that nothing is wrong or if you are a named executor, they will give you a copy. As a beneficiary they may well too, or at least confirm whether you are mentioned in the Will, but you don’t have any rights, so you can’t demand information.   Remember that a new Last Will could have been made, or a Codicil written cancelling or amending the previous Will.As the debts are not being paid you could possibly apply for letters of administration to sort out the estate. This would inevitably be contentious and we could certainly refer you to a firm who would advise you as we don’t deal with contentious estates. (That is ones where there will be a dispute!) However, we can put in a Caveat which is in effect an attempt to force the other side to talk to you, but that won’t work if probate is not required, and you may need to justify your suspicions that things are not being handled correctly.It may be of course that she just has no money.Let me know if you would like to be contacted, and good luck!Steve

Wicked stepmother won’t let me see the Will.