Writ/Warrant

Mary-

Looking for advice, sorry this is complicated.
My family is in dispute regarding my dad's will.

I was previously named as sole executor but this was removed due to my health issues several months ago and two other family members are now executors.

The sister who is making accusations regarding the will has her own solictior and the two exectuors have their own.

I was told by the solicitor that i consulted that I should write and inform my sister's solicitor that I was no longer executor which I done a few months ago.
I also had to fill in forms with the two executors solicitors for their records.

My sister's solicitor has written to one of the new executors so
i thought this was me out of the loop regarding my dad's house.

I received a letter from my sister's solicitor saying that although I said I was no longer executor that they needed proof of this.
I replied and said that I had done everything I was instructed to do and that they should speak to the executors.

The executors told me their solicitor was going to contact either my sister or her solicitor but I have now found out that she has not done this.

A few weeks ago the two executors started doing work in the house to tidy it up, then a few days ago I was issued with a writ/warrant at my home stating I was moving items from the house and it was only my name on the writ not the other executors.

I contacted the executors and they contacted their solicitor who asked for the writ/warrant and told me not to worry about it as they will sort it out.
I am worried about it.

Also 3 days ago one of the executors phoned me to say that the sister had sent the police to dad's house to say that a writ had been issued and that we were still removing things from the house. The police said it was me they were looking for.

Again the executor contacted her solicitor and explained what has happened and again they said I was not to worry about it.
Any advice on what I should do?

Should I just let the executors solicitor handle this as my sister's solicitor has made a mistake.

I should point out that although the sister has been making noises about doing something this is the first legal thing she has done except for getting letters sent saying that she does not agree with the contents of the will.

I live in Scotland and I know the law can be different in other areas.
Thanks
M

rpc

I'm not quite clear on how she can stop things being removed from the house - executors are perfectly entitled to do this. What they do with them later may be breaching their duties, but relocation shouldn't be a problem.

While I would generally assume that the solicitors will get it right:
Did you renounce before or after confirmation?
Are the new executors confirmed?
Have you written to sister's solicitor to say you are no longer executor?


If you just want to be left alone, I would write to the sister's solicitor saying that you informed them that you have renounced your role as executor nominate on X date (and grant of confirmation was issued to A and B on Y date). Any queries regarding the estate should be directed to the executors and any further communication on the issue to you will be reported to the police as harassment.

If you want to fix things, get a solicitor.

Mary-

Thanks for taking the time to reply.

I had written to her solicitor a few months ago to tell them i was no longer executor and I told them to write to the new executors which they did but the new executors did not reply to them.
The new exectuors said that their solicitor would contact the sister or her solicitor but then did not do it.

The will has not been confirmed yet and the new exectuors solicitor is in the process of doing this just now. I was never involved in this process as i gave up the role of executor before this started.

The sister went to see a solicitor a couple of weeks after my dad died before I even contacted a solicitor as she claimed that she is not happy with the contents of the will and she claimed she knew that my dad wanted things done differenty.
She also went as far to say that we forced him to write the will.
She never took it any further than get letters sent saying she does not agree with the will.

Now she has seen that there is things happening with my dad's house and she does not know what is going on so she has got her solicitor to send a writ to me saying that I have not to move anything from the house.

The writ also stated a list of items that she claimed are in the house which is a load of rubbish as a lot of the things don't exist or are not of the quality that she is stating.

As I said previously I have not been in my dad's house for a few months.

Does anyone know what happens when a writ is sent out,do i need to go to court.

I know I have not done anything wrong and the executors solicitor should deal with this I cannot help worrying.

Mary

rpc

Mary- wrote: »

The will has not been confirmed yet and the new exectuors solicitor is in the process of doing this just now. I was never involved in this process as i gave up the role of executor before this started.

So sister could feel like she is getting the runaround. Until confirmation, all that should be getting done is compiling an inventory of the estate. Sister could conceivably apply for confirmation herself...

That said, I would adopt the broken record technique. "I told you on date X that I declined to be executor. A&B have taken on the role." Leave it at that and don't worry. This is likely to get messier from the sounds of things, so distance yourself as much as possible if you don't want to get stuck in the middle of it.

You could consider calling the court that issued the writ, but the writ presumably asks you to stop doing something that you are not doing and you therefore have nothing to worry about. You cannot be held responsible for other people's actions.

While it would only concern an executor, sister will have legal rights to a share that the will cannot extinguish.

madbadrob

When you renounced the executors role you should have had to sign a letter stating this. The solicitor who dealt with this should have the document. If you did this by way of a letter to the new executors then they need to deal with this. I would go to your solicitor again and ask about making a statutory declaration.

Did you apply for probate at any time? If not have your sisters? If not is there an house involved or is the estate such that it is just cash and items that belonged to the deceased?

As the sister who issued the writ started a claim that the will is invalid? If so then no one has the right to remove anything until this is sorted.

Legal advice should be sought again and if you are not happy with what your present solicitor has done ask to speak to a senior partner in the firm

Rob

Mary-

Hi again and thanks for the reples.

The only thing my dad left in his will is his house which he left to his son who has stayed there all his life. the son is 54.

The sister thinks the house should be sold so she can get her share of the money but the rest of the family were in agreement that the son should get to keep the house as its his home and it was my dad's wishes.

Also there is a outstanding mortgage and some bills the son will need to pay if he takes on the house.

I sent a letter myself to the sister's solicitor to say I was no longer exectuor and also filled in a form with the executors solicitor which removed me as executor from the will.

The sister's solicitor did write to one of the new executors after they recieved my letter saying I was no longer involved but the new exectuotor did not bother to reply as instructed by their solicitor.

So the way i see it as the sister solicitor had no reply from the new executors and nothing from their solicitor the sister decided to send the writ to me as I was the person they had sent the previous letters to.

The whole thing is a mess and the reason I asked to be removed is because of health reasons and all this has sent my blood pressure soaring.

M

getmore4less

Scotland
Don't the childrens legal right only include the moveble assets not the property?

That would explain the contents issue but not the claim on the house.

madbadrob

getmore4less wrote: »

Scotland
Don't the childrens legal right only include the moveble assets not the property?

That would explain the contents issue but not the claim on the house.

Basically yes.

1. Prior Rights

After debts and other liabilities have been met, a widow, widower or a surviving civil partner has a certain " prior rights of a surviving spouse or civil partner" in the deceased person's estate, where no will has been left.

He or she is entitled to the dwelling house of the deceased in which the surviving spouse or civil partner was resident at the time of the deceased's death, plus up to the value of £24,000 any furnishings and furniture of that house. (In certain cases, e.g. where the house is a farmhouse or part of a shop, or where the house is worth more than £300,000 the entitlement is not to the house itself, but to its value up to £300,000.)

The surviving spouse or civil partner is also entitled to the first £42,000 out of the estate if the deceased left children or descendants of children or to the first £75,000 if the deceased left no children or descendants.

Prior rights are a first claim on the estate, before legal rights (see below).

2. Legal Rights

A surviving spouse or civil partner and children are entitled to certain "legal right" out of the deceased person's moveable estate. In Scots law, heritable property means land and buildings, while moveable property includes such things as money, shares, cars, furniture and jewellery.

The surviving spouse or civil partner is entitled to one-third of the deceased's moveable estate if the deceased left children or descendants of children, or to one-half of it if the deceased left no such children or descendants.

The children are collectively entitled to one-third of the deceased's moveable estate if the deceased left a spouse or civil partner, or to one-half of it if the deceased left no spouse or civil partner. Each child has an equal claim. Where a child would have had a claim had he (she) not died before his (her) parent, his (her) descendants may claim his (her) share by the principle known as representation.

B. Where the deceased left a valid will
Where a will has been left, the prior rights described in note 1 above do not apply. However, the legal rights described in note 2 may be claimed by a surviving spouse or civil partner or a child, although any person who has rights under a will as well as legal rights has to choose between them; he or she cannot have both. Thus, for example, if a man dies leaving his widow a bequest of £2,000 in his will, she can choose to accept it,
or alternatively claim the one-third or one-half of his moveable estate which is her legal right.

The terms 'child', 'children' and 'issue' or other similar terms in wills are understood to include both the legitimate and the illegitimate unless there is an express exclusion of the one or the other.

Taken from http://www.scotland.gov.uk/Publications/2005/12/05115128/51285

Rob

rpc

madbadrob wrote: »

Did you apply for probate at any time? If not have your sisters

This is Scotland - no probate and OP has already stated that confirmation has not already been obtained.

I don't believe that any estate can be managed without confirmation, but for a small estate the court will assist you.



Legal rights do only apply to the moveables (prior rights don't apply here - they only come into it in cases of intestacy). Turn the house upside down and anything that falls out is subject to legal rights.

That said, there is still nothing wrong with removing things. Disposing of them, yes but not just moving them. It could be something as simple as tidying up the house to get a valuation for confirmation.

Until confirmation has been obtained, the executors cannot do anything to the estate.

madbadrob

If confirmation has not been sought or granted then technically no executorship as been granted and therefore the OP could not renounce the role per se.

Rob

rpc

madbadrob wrote: »

If confirmation has not been sought or granted then technically no executorship as been granted and therefore the OP could not renounce the role per se.

Except you would decline to act before confirmation and nominate alternates. They would then apply to the court as executors dative, with OP's permission.

It does leave the situation a little unclear from the outside - OP is named as executor but says that they aren't. Given that no intermeddling is permitted at this stage, it shouldn't really matter.