I was a bit surprised to get this question, but on speaking to colleagues it turns out that it is quite common with homemade Wills to have no executors’ names in them!Surprisingly, the Will – unless there are other issues – is valid, despite having no executors named in it. So, who is entitled to act as executor (or in this case, administrator) of the Will?If the deceased left a will, but there are no executors named or (if named) willing or able to administer the estate, someone else must step forward. This could be because:
- There are no executors named in the will.
- There are executors named in the will but, because the will is badly written, their appointment is not valid.
- The executors died before the deceased.
- The executors renounced.
- The executors are incapable of managing their affairs.
Probate Quotes Probate Disputes
Who deals with the Will if it does not appoint any executors?
The first person who is entitled to be appointed as administrator is the legal spouse of the deceased. If the deceased does not have a spouse, then the next people entitled is the children of the deceased: they are all equally entitled, seniority is not relevant. If the deceased does not have any children, then the next personw entitled are the parents of the deceased if alive.
If no one is entitled to be appointed as administrator under the intestacy rules, then the court will appoint an administrator. The court will usually appoint the person who is most likely to be able to administer the estate efficiently and in the best interests of the beneficiaries.
The administrator has the same powers and duties as an executor. They are responsible for collecting the assets of the estate, paying the debts and taxes, and distributing the assets to the beneficiaries.
If the administrator does not distribute the estate within a reasonable time, they can be held personally liable for the costs of the estate.
Here are some of the things that an administrator may need to do:
- Gather all of the deceased’s assets and debts.
- Pay the deceased’s debts, including funeral expenses.
- File the deceased’s tax returns.
- Distribute the deceased’s assets to the beneficiaries.
- Keep accurate records of all of their actions.
- For a more detailed look at the adminsitrators duties CLICK.
If you are appointed as an administrator, it is important to ensure that you are fulfilling your duties correctly. Here at the Probate Department (brokers) we have contacts who can help at pretty modest costs – contact us.
Economical probate fees? According to the Telegraph, many banks and high street solicitors overcharge for probate services leaving grieving relatives thousands of pounds worse off. We review the services of solicitors, probate and other experts so we can point you to the right expert at a sensible fee for dealing with your situation. Economical fees are one thing, but sometimes it is necessary to pay for expertise as getting probate wrong can be a disaster for all concerned. Before passing on enquiries, we ask firms to confirm that they actually have the time to offer an efficient service! Banks and Solicitors overcharge for probate
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
]]>My husband and I were appointed executors by our best friend who was diagnosed with terminal cancer and given 6-8 months to live. He wrote a will stating that after debts, funeral and testamentary expenses, legacies and inheritance tax are paid then any monies left should be paid to his daughter. He has no property, he lived in a shared house, and the only money he has will be his private pension when that is paid out. A couple of weeks ago he stated to us both that he wanted to give each of his brothers and sisters £1000 each. We advised him to write a letter and put it with the will. Sadly he passed last week, just 6 weeks after being diagnosed without having a chance to write the letter, we had to take him to the hospital as he was so unwell. Are we allowed to uphold his wishes even though it was never written but it was something he stated to us both.
Answer: Can an executor act on a verbal wish?
It depends. Sometimes assets are left to the executors to dispose of as they see fit, and in this case they certainly have the right to act on a verbal wish and are unlikely to be challenged. At other times they could get themselves in hot water if any other beneficiary feels they have lost out through an unauthorised gift.That said, Minor Gift Schedules are quite commonplace, but they should be mentioned in the Will and should only contain things which are very small in comparision with the total estate and of very limited value.
More on Probate Disputes. Probate Claim Checker. Probate Quotes
]]>Our Executors liver far apart: is it necessary for all executors to be present at the Probate Registry when the interview takes place?This is one of those probate questions which comes up regularly, so here is the answer.Yes and No! If you use us or a solicitor, we can carry this out for you.If you are DIYing, then all Executors who intend to act have to attend the interview, but it is possible to arrange the interviews one after another in different Probate Registries. Clearly, this will cause some delay as papers are passed from one Probate Registry to the next!
Executors Live Far Apart
]]>HMRC is increasingly challenging property valuations when estates are being wound up.
Probate Quotes Probate Disputes
It would seem that many folk undervalue property when preparing the figures for a Grant of Probate. What they don’t realise is that HMRC have direct access to the District Valuers service:“DVS is the commercial arm of the Valuation Office Agency (VOA) and provide professional property advice across the public sector. We offer a broad range of property-related services, including Strategic Asset Management and Energy and Sustainability services.We employ around 400 people within DVS and are able to draw on the wider pool of skills, expertise and resources of the VOA. The VOA is one of the largest employers of Chartered Surveyors in the UK and operates from an extensive network of offices, covering the whole of England, Wales and Scotland. This enables us to undertake the largest national instructions as well as smaller local commissions in a cost-effective way.As we are part of the public sector ourselves we have a unique understanding of the needs of our clients and the financial and regulatory pressures that they face. Our specialist sector teams have extensive experience in central government , regional, local and devolved government, health, transport and infrastructure, environment, emergency services, educational bodies.We also publish an annual Property Market Report which draws on our wide knowledge and experience to give an independent picture of various property markets across the UK. “So if you think you can pull the wool over HMRC’s eyes when it comes to property valuations, you are playing a dangerous game which could result in significant financial penalties. If HMRC consider the undervaluation is careless or deliberate, the extra Inheritance Tax penalty can be very substantial.The lesson to be drawn from this is to be certain that you can justify any valuation to the HMRC: fairly easy with properties on an estate, but you may well need the services of a qualified valuer if the property concerned is not easily comparable with others.
Property Valuation Danger for Executors.
Thes could be useful:
Property to sell?
Avoid chains and disappointments: market value in the bank within 3-5 weeks of grant, click to learn how, as preparation is needed.
Cash Buyer as an alternative.