By-passing the Executor

MrAnalogy · 6 March 2018 at 4:47PM

Hi there

Bit of a strange one that has us concerned.

My Wife's ex-husband died a couple of days ago and the Will shows that the Executor is the solicitor who drew it up.

If appears that the step-son in law and his Wife (both beneficiaries) have decided it would be cheaper not using a solicitor and want to use an Auditor (the husband is in Financial Services so can prepare the decedent's financial affairs)

This couple lived with the deceased until death, with the Wife being his carer, whilst his natural daughter lives 200 miles away.

She (and we) are concerned that as next of kin she is being by-passed with the decision making processes, and feel that although she lives at some distance she should still be involved in significant decisions, and at least have an equal say as her step-sister.

Our main concern is that we understood that the named executor had to be informed asap, and that they had to act in that capacity unless unwilling or unable (although I think professionals are obliged to act).

We also understood that the executor could not be dismissed unless failing in fiduciary duty, and that a new executor had to be chosen and agreed to obtain probate.

Our concern is that the husband might be contemplating obtaining a Grant of Representation, which several parties would object to (provided they knew about it!)

Sorry this is so long, but this is shaping up to explode into a massive family feud and I think all concerned would be better off knowing the absolute legal position and the rights and responsibilities of the Executor, next of kin and beneficiaries.

Any thoughts or advice would be much appreciated, as at the moment we do not want to exacerbate the situation by going to a solicitor yet.

Best Regards

Yorkshireman99 · 6 March 2018 at 5:01PM

MrAnalogy wrote: »

Hi there

Bit of a strange one that has us concerned.

My Wife's ex-husband died a couple of days ago and the Will shows that the Executor is the solicitor who drew it up.

If appears that the step-son in law and his Wife (both beneficiaries) have decided it would be cheaper not using a solicitor and want to use an Auditor (the husband is in Financial Services so can prepare the decedent's financial affairs)

This couple lived with the deceased until death, with the Wife being his carer, whilst his natural daughter lives 200 miles away.

She (and we) are concerned that as next of kin she is being by-passed with the decision making processes, and feel that although she lives at some distance she should still be involved in significant decisions, and at least have an equal say as her step-sister.

Our main concern is that we understood that the named executor had to be informed asap, and that they had to act in that capacity unless unwilling or unable (although I think professionals are obliged to act).

We also understood that the executor could not be dismissed unless failing in fiduciary duty, and that a new executor had to be chosen and agreed to obtain probate.

Our concern is that the husband might be contemplating obtaining a Grant of Representation, which several parties would object to (provided they knew about it!)

Sorry this is so long, but this is shaping up to explode into a massive family feud and I think all concerned would be better off knowing the absolute legal position and the rights and responsibilities of the Executor, next of kin and beneficiaries.

Any thoughts or advice would be much appreciated, as at the moment we do not want to exacerbate the situation by going to a solicitor yet.

Best Regards

An executor cannot be dismissed without good reason and they should be informed of the death ASAP. The named executor is the only one allowed to act unless they renounce excecutorship. A solicitor can choose not to renounce. Note that only a solicitor is entitled to charge for being executor. Assuming the solicitor holds the will nobody else can apply for probate or letters of administraion with the will annexed unless he gives up possession of the will. If he is made aware of the dispute he might well choose to do the job himself. That would be quite reasonable. Note that next of kin has no real legal meaning or rights.

MrAnalogy · 6 March 2018 at 5:10PM

Thank you for you most helpful (and swift!) reply.

One of our concerns is that the husband will not actually make the solicitor aware of the death (which we thought would be a legal obligation) unless the cause of death/Death Certificate system automatically informs them (although how they would know I am unsure).

I am unsure whether the husband intends to try and charge for his "services", or how the Auditor would be paid - it may be that as his Wife is a beneficiary of a percentage of the estate that he believes the fewer charges levied against it will mean more in the bequest.

Thanks again

Keep_pedalling · 6 March 2018 at 5:11PM

How do you know that the solisitor has not renounced, and why do you think your wife has any say in any of this, she is certainly not his next of kin.

paddy's_mum · 6 March 2018 at 5:39PM

Keep_pedalling wrote: »

why do you think your wife has any say in any of this, she is certainly not his next of kin.

Well, I'd hazard a guess that the OP's wife is the mother of the 'natural' daughter and is concerned that the shenanigans which appear to be shaping up may leave her child disadvantaged, financially and emotionally.

I suggest that it is a rare mother who would not want to be seeking advice if it protects their child's welfare and future prosperity. :A

Yorkshireman99 · 6 March 2018 at 5:43PM

MrAnalogy wrote: »

Thank you for you most helpful (and swift!) reply.

One of our concerns is that the husband will not actually make the solicitor aware of the death (which we thought would be a legal obligation) unless the cause of death/Death Certificate system automatically informs them (although how they would know I am unsure).

I am unsure whether the husband intends to try and charge for his "services", or how the Auditor would be paid - it may be that as his Wife is a beneficiary of a percentage of the estate that he believes the fewer charges levied against it will mean more in the bequest.

Thanks again

Why not tell the solicitor yourself always assuming you know his identity.

Keep_pedalling · 6 March 2018 at 5:49PM

Yorkshireman99 wrote: »

Why not tell the solicitor yourself alswys assuming you know his identity.

As the solisitor is the executor, I would also expect they are the person holding the will. This all seems a bit odd as the deceased only dies a couple of days ago.

Tigsteroonie · 6 March 2018 at 6:01PM

"The will shows ..." Have you / daughter seen the original will or only a copy? As others say, it is customary for a solicitor to retain the original will when they are the only Executor.

Presumably neither you nor daughter have a copy of the death certificate - are you local, could you obtain a copy? [Note - I have no idea how quickly you could obtain this]

I would suggest that Daughter contact the solicitor, with a copy of the death certificate if possible but don't delay if you cannot get that, to notify the solicitor of the death and to ask whether they hold the will. At the moment, you don't even know if the solicitor is aware of the death.

TonyMMM · 6 March 2018 at 6:29PM

Tigsteroonie wrote: »

Presumably neither you nor daughter have a copy of the death certificate - are you local, could you obtain a copy? [Note - I have no idea how quickly you could obtain this]

The registration office in the area the death occurred would usually supply a copy within an hour or so if you attend, or next day by post if you pay for an express service.

But no need to have one in your hand to ring the solicitor and let them know.

(next of kin has no real legal meaning in English law)

MrAnalogy · 6 March 2018 at 9:13PM

Thank you all for your replies.

There are 3 executors named - the solicitor, the daughter and the step-daughter.

The solicitor holds the original of the will (as he drew it up) and only a copy has been seen. The coroner is sending the Death Certificate to the step-daughter.

I have spoken to the natural daughter (my step-daughter) and suggested that she spoke to the solicitor to make sure that he was aware.

Am I correct in believing that the solicitor has to formally withdraw from being as executor or can the other executors just ignore him (apart from obtaining the original of the Will)?

I appreciate that next-of-kin has no legal basis in this matter, but I assumed that as a co-executor she has the right to approve (or otherwise) actions by the other executor(s)?

Thank you all again for all your contributions - they do help clarify the situation in my (independent) mind.

For reference - yes, the ex-wife is interested in her daughter being treated fairly and being allowed to act as executor in any relevant decision making.

Not quite sure what happens if the 2 executors disagree though...?

Cheers

Keep_pedalling · 6 March 2018 at 9:51PM

As there are multiple executors, any of them can step aside but no one can force them to do so and none of then can simply be ignored. As we seem to have yet another executors at potential loggerheads situation here, I would suggest that the solicitor is retained as an impartial executor, but with one or both of the other executors, doing the bulk of the work to keep costs down.

The executors job is simply to execute the will to the letter, there should really be no decisions to make, if in doubt consult the professional executor and be guided by him/her.

By-passing the Executor

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