Over here, it is not always possible for beneficiaries to see the Will until after probate has been granted. But prompt action is essential as otherwise the funds might disappear and not be recoverable. Over here, there is a theoretical limit of 6 months after the grant to raise a dispute, so it pays to keep an eye on the list of Probate Grants so you can act as soon as Probate approval is granted, and request a copy of the Will (if any) and Grant. If there is no will, have a look at the Rules of Intestacy.

Our advice is always if you have suspicions, ask for a copy of the Will, and hit that you will take it further if you don’t get one. Many executors will then comply (though they don’t have too!)

If that doesn’t work, we would ask a solicitor to write a letter requesting a copy, and gently pointing out the risk of enormously expensive probate disputes (contentious probate) which can leave everyone losing out badly.

If that doesn’t work, if you can gather any evidence of wrongdoing (or the intention of wrongdoing), then you may have a case for raising a dispute immediately, before probate is granted. But it is pointless raising a dispute without evidence, except as a negotiating tactic.

We don’t deal with contentious probate ourselves, but we do know some firms who are genuinely out to help and won’t charge excessive fees – unless you are so angry you push things too far, against advice, which does happen. Negotiated settlements often mean getting something rather than nothing.

But I would repeat the point that many executors do not understand the Wills they are administering, and given some help, would do the right thing, so don’t rush into legal action.

 More help on Probate/ Will Disputes.

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

Capital Gains after death but during administration.

There is no CGT at the point of death – any capital gain is wiped out, and the value is rebased.But that only applies to assets still owned at the date of death, not to assets which may have already been sold and the CGT not yet paid.Only Inheritance Tax is an issue at that time in terms of assets, though there is often a requirement for an income tax return.If the sale price indicates that it may have been undervalued for probate, there could be a serious issue if that brings the estate into paying IHT. There could be penalties, personal to the executor, and the estate still has to pay the IHT.  That can be difficult if it has already been paid out! The most common problem is capital gains tax on probate sales a trap for unwary executors. HMRC do understand the issues, so talk to them if necessary, and before distributing the proceeds,  What The taxman does NOT understand is executors thinking they can get away with not paying capital gains tax when it is due.  They may assume it is a deliberate fraud.But I don’t think this is your issue, as I understand it.  Yes, any gain in value after the probate valuation is subject to Capital Gains Tax.

Capital Gains Tax after death – the most common cause:

Very often, the family will think that the sale price of probate property could be increased by carrying out repairs and modernisation.  Sometimes this works, and sometimes it doesn’t – there is often a fight to buy the property “to do up” as it is assumed to be cheap, though often it isn’t when you bear in mind the cost of the work.  Any increase in value after the date of death is potentially subject to Capital Gains Tax (CGT) and if proper records have not been kept of the costs of the renovation work, capital gains will be applied to the whole gain.  Unpaid labour will not be taken into account, and any attempt to claim for labour could result in a request for tax and national insurance records, so if you take this route, do it formally.

If Capital Gains Tax is not paid

In this case, it is the responsibility of the executor/ administrator to pay the Capital Gains Tax (and use their personal CGT allowance.)That said, it is usually possible to avoid the administrator being lumbered and to potentially increase the tax free element of the gain.  If that is appropriate (and often it is really not a problem as the gain is fairly small) then you could tax advantage of a (paid) consultation with a tax barrister.  At the time of writing (Jan 2016) the telephone consultation fee is £60 or £150 for more substantial estates.  This does not include tax calculations, just advice on the situationmay be resolved.  Sometimes that is all you need, other times more work would be needed.It is a complex area (which is why we have suitably experienced staff on board) so please just take this as general guidance. For non UK residents, the situation is more complex.Best wishes,TPD