Cannot Trace Executor of Will

Alexander51

Scottish Law. A friend recently died and as I am familiar with Confirmation(Probate) prepared the necessary paperwork for the Sheriff Court. There are two executors, friends husband and Solicitor
from 30 years ago. Since the will has been drawn up (30Yrs) this Solicitor has been disbarred and I cannot trace him. The new solicitor will not release the Original Will to the Husband (executor) without the Executor Solicitor permission. As I cannot trace the Executor Solicitor it is stale mate, I need the Original Will to apply for confirmation. Is the current Solicitor correct and if so what can I do to access will.

spacey2012

How has this third party become involved ?
If they refuse to "release" the will, where does he lie in the interstate rules as a relation ?
Is he a beneficiary ? if not why bother.
If so and they refuse to produce the will, then filing for probate will soon rattle it up.

madbadrob

What was the original solicitor disbarred for?

No I dont think he is correct. Probate can go ahead with one executor as a power would be reserved for the second. I would speak to another solicitor about this. Scottish law differs in some aspects.

Rob

securityguy

The new solicitor will not release the Original Will to the Husband (executor) without the Executor Solicitor permission.

In English Law, I believe that in the absence of a valid will and executors, an appropriate person can apply for letters of administration on the grounds that the estate is intestate. If someone who holds a valid will doesn't like it, they'll need to produce the will in order to overturn the application.

I had this discussion with regard to will I'm an executor for, where the not-yet-deceased is (for fairly valid reasons, as it happens, as his circumstances are complex and the potential for wrangling substantial) not willing to disclose the contents of his will. I asked what would happen if for some reason the solicitor who holds the copies either lost them or decided to !!!! about, and the conclusion was that the rules of intestacy would be followed. As the estate is large and the family messy, this would be v. bad, so I believe that there are now several people holding sealed copies rather than just one solicitor.

So in this case, were it to be England, I believe the husband can simply go ahead and apply for letters of administration, because as the first in line under intestacy rules they're perfectly entitled to.

This strikes me as an rather poor state of affairs. Someone might die, leaving a will which gives everything to the dog's home. The deceased's next of kin apply for letters of administration and distribute the estate on the basis of intestacy. At what point would this rather simple fraud against Battersea Dogs' Home come to light?

sleepless_saver

Alexander51 wrote: »

There are two executors, friends husband and Solicitor
from 30 years ago. Since the will has been drawn up (30Yrs) this Solicitor has been disbarred and I cannot trace him. The new solicitor will not release the Original Will to the Husband (executor) without the Executor Solicitor permission. As I cannot trace the Executor Solicitor it is stale mate, I need the Original Will to apply for confirmation. Is the current Solicitor correct and if so what can I do to access will.

For what it's worth, I recently had a Scottish will released to me by a solicitor where I was one of three executors. I was not asked to provide evidence of permission from the other executors.

I discovered that one of the solicitor executors had died - it would be worth checking this out in your case as it would be a quick solution.

madbadrob

securityguy wrote: »

In English Law, I believe that in the absence of a valid will and executors, an appropriate person can apply for letters of administration on the grounds that the estate is intestate. If someone who holds a valid will doesn't like it, they'll need to produce the will in order to overturn the application.

I had this discussion with regard to will I'm an executor for, where the not-yet-deceased is (for fairly valid reasons, as it happens, as his circumstances are complex and the potential for wrangling substantial) not willing to disclose the contents of his will. I asked what would happen if for some reason the solicitor who holds the copies either lost them or decided to !!!! about, and the conclusion was that the rules of intestacy would be followed. As the estate is large and the family messy, this would be v. bad, so I believe that there are now several people holding sealed copies rather than just one solicitor.

So in this case, were it to be England, I believe the husband can simply go ahead and apply for letters of administration, because as the first in line under intestacy rules they're perfectly entitled to.

This strikes me as an rather poor state of affairs. Someone might die, leaving a will which gives everything to the dog's home. The deceased's next of kin apply for letters of administration and distribute the estate on the basis of intestacy. At what point would this rather simple fraud against Battersea Dogs' Home come to light?

Actually Security guy you need to know the law and understand it better. Neither in Scotland or England and Wales could you get letters of administration when there is a known will. The point the OP was making was how was he to get the required grant in Scotland when the solicitor refused to release the will to him without the second executor.

If he or anyone was to apply for administration knowing that a valid will was in place would be breaking a number of different laws and perjury.

Rob

spacey2012

It is only a valid will if it is filed.
As many agree, they will soon cough it up when they steam ahead and file.

madbadrob

Spacey,

I would disagree. It is a valid will until proven not to be valid. Only then can the estate be declared intestate

Rob

Mojisola

Alexander51 wrote: »

The new solicitor will not release the Original Will to the Husband (executor) without the Executor Solicitor permission.

How is the new solicitor justifying refusing to hand over the will?

As the other executor has been disbarred, isn't that a good reason to claim that he wouldn't be a fit person to act as executor?

Savvy_Sue

I may be missing something here (I often do), but how can you file if you don't have the will?

securityguy wrote: »

I had this discussion with regard to will I'm an executor for, where the not-yet-deceased is (for fairly valid reasons, as it happens, as his circumstances are complex and the potential for wrangling substantial) not willing to disclose the contents of his will. I asked what would happen if for some reason the solicitor who holds the copies either lost them or decided to !!!! about, and the conclusion was that the rules of intestacy would be followed. As the estate is large and the family messy, this would be v. bad, so I believe that there are now several people holding sealed copies rather than just one solicitor.

Aside from rob's very valid points, it is also possible to file (a copy of?) the will with the probate registry, for a one off fee of £15. I don't know how to find the reference right now (brain slightly fried) but I hope someone who knows what to look for will find a link ...

Savvy_Sue

Savvy_Sue wrote: »

I may be missing something here (I often do), but how can you file if you don't have the will?

Aside from rob's very valid points, it is also possible to file (a copy of?) the will with the probate registry, for a one off fee of £15. I don't know how to find the reference right now (brain slightly fried) but I hope someone who knows what to look for will find a link ...

This might be the link, but it's not working for me atm.