Dragging out probate for personal gain

rel77

Hi. My dad died in march and me and my brother who are both 50/50 beneficiary's are the executers of the will. My brother is being difficult after volunteering to do the paperwork and still to my surprise has not started probate and will not communicate. He has all the paper work.

I think he intends to drag it out over 12 months for his own benefit. After 6 months though we have to start paying interest. As far as I know probate has to be done after 12 month s is that correct?

Can anyone give me some advice? Am I missing some obvious nasty scheme he has thought up?

TonyMMM

Is the estate likely to be above the Inheritance Tax threshold ? If yes, then 6 months does come into play.

Otherwise there is no time limit for dealing with the estate - although you, as a disgruntled beneficiary, could take court action to remove the executor if you can show them to be acting unreasonably.

joerugby

rel77 wrote: »

Hi. My dad died in march and me and my brother who are both 50/50 beneficiary's are the executers of the will. My brother is being difficult after volunteering to do the paperwork and still to my surprise has not started probate and will not communicate. He has all the paper work.

I think he intends to drag it out over 12 months for his own benefit. After 6 months though we have to start paying interest. As far as I know probate has to be done after 12 month s is that correct?

Can anyone give me some advice? Am I missing some obvious nasty scheme he has thought up?

Why would dragging it out like this be to his benefit?

troubleinparadise

You say you are also an Executor. Have you renounced your executorship, or declared power reserved?

If neither of those, then you can take over yourself if you are unhappy with your brother's non-performance.

I can't see how he would benefit from dragging out the paperwork for probate -as you have to sign as co-executor the application for probate, he can't access any money until probate is granted, so equally can't therefore hide away anything from you.

Perhaps you need to step forward and discuss this with your brother - it sounds as though you are beginning to lose faith in him already, so it can't make the situation any worse. Perhaps he is just out of his depth and can't cope.

rel77

troubleinparadise wrote: »

You say you are also an Executor. Have you renounced your executorship, or declared power reserved?

If neither of those, then you can take over yourself if you are unhappy with your brother's non-performance.

I can't see how he would benefit from dragging out the paperwork for probate -as you have to sign as co-executor the application for probate, he can't access any money until probate is granted, so equally can't therefore hide away anything from you.

Perhaps you need to step forward and discuss this with your brother - it sounds as though you are beginning to lose faith in him already, so it can't make the situation any worse. Perhaps he is just out of his depth and can't cope.

HI thanks for the reply. I should have power reserved which means I should be able to do probate if needed. If my brother had used power renounced I would have had to sign the document for that to happen. Unless you know some other way of him getting control without me being mentally ill or unable to make my own decisions (power of attorney).

As for the reason he has an interest in the house which is part of the estate. He might need time to save up? or could he use the house to raise a mortgage?

troubleinparadise

Dear Rel77,

If you have signed the forms for Power Reserved, you can re-instate this via the Probate Office. If you have not signed any forms you are still a full Executor with as much control and power as your brother.

He cannot have removed you as Executor without you knowing about it - you could check with the Probate Office about that too if you wanted.

As for him buying the house (well, your share) included in the Estate - would that be an issue? If it is valued at the market rate (perhaps using the median of 3 EA's valuations), and you are happy to go along with him buying it - again, it's either him or a whole new purchaser, and it might save some EA and solicitor fees etc - then if he can raise the sum of money that is your 50% share, within a certain timeframe, could that be a possibility in your eyes?

(I do know of a dog-in-the-manger situation where a sibling just didn't want to go ahead with that because they couldn't bear the thought of another sibling "having" the property, even though it was paid for fairly, and just wanted rid of it completely!)

If he does want to buy your share, the two of you could come to an arrangement - using a solicitor for legal clarity - at least that would move things along more quickly.

As to how he might raise the mortgage, that is his problem. If he can't raise the mortgage, then the house will have to be sold.

rel77

Thanks very much for the advice troubleinparadice I defiantly have not signed anything yet regarding giving up my executer status. Its nice to know that if someone forged my signature I could get it back (I am not saying they have though).

I don't mind him buying it at all, rather him than someone else. I just want a fair price.

nom_de_plume

I assume your brother is a beneficiary of some of the estate?

If he wants to own the house, all he needs to do is agree a valuation with any other affected parties, sort out what he needs to borrow and then tie up the deal.

Without knowing all the ins and outs, the best way to tie it up is hard to say but in a hypothetical situation where it is a simple 2 way split between 2 brothers, he could simply transfer the ownership via Land Registry into his name and then go to a mortgage lender and take out a mortgage for half the value of the property and hand the cash over to you.

He obviously needs to be in a situation, financially, where he can obtain borrowing to fund such a deal.

joerugby

troubleinparadise wrote: »

Dear Rel77,

If you have signed the forms for Power Reserved, you can re-instate this via the Probate Office. If you have not signed any forms you are still a full Executor with as much control and power as your brother.

There are no longer any forms to be signed for "Powers Reserved". All that is required for probate is for the applicant to declare that notice of the application has been given to the other executor(s) to whom power is reserved

troubleinparadise

joerugby wrote: »

There are no longer any forms to be signed for "Powers Reserved". All that is required for probate is for the applicant to declare that notice of the application has been given to the other executor(s) to whom power is reserved

Your post is contradicted by the Guidelines for filling out the Probate Application form PA1:

C The executor does not wish to apply for probate now but wishes to reserve the right to act as executor in the future if necessary – this option is referred to as having “power reserved”.
D The executor does not wish to apply for probate at all. This is referred to as “renouncing”. It means that they gives up all their rights to act as executor.

If you give reason D or E, please send a letter signed by the executor stating their intention when you send the application to the Probate Registry. If option C, D, or E is stated the Probate Registry will, on receipt of your application, send you a form for the executor(s) to sign to confirm their intention. You should arrange for this to be completed and then return it to the Probate Registry as instructed.

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/pa01-eng.pdf

http://www.probateforms.info/wp-content/uploads/2012/12/PA1A-Probate-Application-Form-guidance-notes.pdf

joerugby

troubleinparadise wrote: »

Your post is contradicted by the Guidelines for filling out the Probate Application form PA1:



http://hmctsformfinder.justice.gov.uk/courtfinder/forms/pa01-eng.pdf

http://www.probateforms.info/wp-content/uploads/2012/12/PA1A-Probate-Application-Form-guidance-notes.pdf

I know that. I recently applied for and was granted probate for my late father. I rang the Probate Office about the forms to see if I could get them in advance for signature by my brother and sisters. They told me they were no longer required and that I simply had to write confirming that they had been advised. I did so and probate was duly granted.

I queried the website info with the Probate Office and they said that the rules have changed but they are waiting for the online instructions to be updated