insolvent estate, difficult executor

Blinkin73

Hi

Please could any of you provide some advise please. Sorry for the long post

My mother died unexpectedly on 24th April. My brother and I are her only surviving next of kin being her son and daughter.

We found a will dated 2003 naming a certain solicitors as executors and trustess of the state and my brother and I as her beneficiaries.

Looking into her estate it would appear that it is insolvent, there being approximately £3500 in her bank and a further £3500 in an over 50's plan. She had two credit cards debts for approximately £3500 and £4500 and a credit agreement with a furniture store for £1500. There is no house or anything other of value such as a car as she had a mobility car and was declared bankrupt in 2006. She only started a funeral payment plan 3 months ago which is obviously not going to pay out.

Ive done much reading the past few days and sought legal advice as well as spoken to a probate practitioner and a bereavement support advisory service. The general consensus appears to be that as next of kin and not personal representatives we can pay a reasonable amount for her funeral, including a wake and a headstone and wrie to her creditors as next of kin advising them of her death ( we've already phoned and told them) and advise them of the insolvent estate and ask if they will consider writing off the debt. I would also get a firm to value the contents of whats in her home but I am pretty sure its not worth anything of value. My understanding is that there is no duty to settle an insolvent estate and we should then leave it to the creditors to settle the estate if they want to reclaim what is left. I was also advised to put a notice in the London gazette re further creditors contacting me.

I contacted the said solicitors last Tuesday lunch to request that they stand down as executors given the situation. My brother and I being unable to confirm her funeral arrangements until we know that they will stand down and we can safely use the monies in her account to pay for her funeral. We do not have enough funds ourselves at present. I phoned the solicitors again at 4.30 that day and was initially told that my mother owed them money, when I was put through to their acounts depeartment I was first told that they could not give me any information as it was confidential, then later told she didnt owe anything and that someone would be in contact though they couldnt say when.Two days later I received a call from the firm advising that one of the partners would be in contact.

I should add at this point that this is a firm who I had dealings with recently and took to the Legal Ombudsman due to the poor service I felt I received. I won on certain points lost on others. The Legal Ombudsman pointed out that I may have further compliants in future as my case was still ongoing. Wanting to move on with my life I didnt complain until it turned out that they had misbilled me on several ocassions and then wanted more money, which I paid along with making an official complaint which I have yet to receive a reply and will no doubt have to go to the Legal Ombudsman again for. To say I have no faith in the sods is an understatement. Ive posted previously on this site about this matter if you want to bore your self with the details

This morning I phoned again and was told by the secretary that whilst they had located my mothers divorce file they had not yet found her other file. I was also shouted at by the secretary when I asked when someone would contact me as I just wanted to bury my mother. She apologised imediately but thats not the point.

I sent the following email to the partner I was advised was handling the case

Dear Partner A,

I am writing to you in respect of my mothers estate and on behalf of my brother and I as sole beneficiaries.

My mother passed away unexepectedly on 24th April 2014. My brother and I have located a will dated 2003 which identifies your firm as executor and trustees. Can you confirm that there is not a more recent will with your firm.

Having looked at my mothers financial situation it would appear that the estate is insolvent. There being approximately £3500 in her bank accounts and a further £3500 in an over 50's life insurance plan and approximately £7500 in credit card debts. Due to my mother being made bankrupt in 2006 there are no other assets such as a house etc.

My understanding, after seeking legal advice, is that there is no legal obligation to settle an insolveant estate. My brother and I would very much like you to agree to stand down as executers and trustees of her will so that we may then access her funds to arrange and pay for her funeral.

It has now been over a week since I first contacted your firm to request this and am disappointed that as yet no one has contacted us to discuss this or made a decision on the matter. Until you do agree to this my brother and I are unable to make any funeral arrangements for her.

After calling your office today I am advised that you have located her divorce file but not the file containing her will as yet. Please could you ensure that this is done today and that a decision is made so that we may arrange her burial. The current situation is becoming quite intolerable.

If you require any further details please do not hesitate to contact me on **********


I received this email this afternoon

Thank you for your e-mail of this morning.

I was sorry to hear of your mother’s death.

I have spoken to my partner, solicitor A with whom you have already been in touch and she is currently looking into whether there is a more recent Will that that referred to made in 2003.

You will appreciate that papers have to be recovered from store and this does take time.

You say it is “over a week since I first contacted your firm to request this and am disappointed that as yet no one has contacted us to discuss this or made a decision on the matter.” Presumably you mean the request for the partners to stand down as Executors as of course Solicitor A was in touch with you last week by telephone.

I do not know who has been advising you but the personal representatives of an insolvent estate have a duty to act in the best interest of the creditors of the deceased rather than the beneficiaries under the Will.

Debts have to be paid before any legacies and personal representatives may be personally liable to pay money back into the Estate if this procedure is not followed.

Before myself and my partner Partner B are prepared to renounce Probate we will require an indemnity from you and your brother that you will personally pay to us any liability that we incur as a result of us renouncing Probate.

Apart from the indemnity that I refer to we will also expect the costs of the Deed of Renunciation which we can prepare to be paid by your brother and yourself.

There is no reason why you should not arrange the funeral and it may be possible for funds to be accessed without a Grant of Probate, given the assets to which you refer.

The information you refer to in your final paragraph concerning the Divorce file is incorrect.

Apart from the indemnity that I refer to we will also expect the costs of the Deed of Renunciation which we can prepare to be paid by your brother and yourself.

Please let me know if you are prepared to agree to proceed on the above basis.

Yours sincerely.


I want to write to them advising them of the their incorrect presumption that my brother and I would be acting as personal representatives and that we would only be acting as next of kin.

That whilst I am aware that creditors come before beneficiaries when there is an insolvent estate I am aware of the order that debts should be paid is as follows
1.reasonable funeral expenses
2. administration costs (your firm)
3. creditors.
That my brother and I intend to pay for her funeral from the estate and should her creditors wish to administer her estate themselves that will be up to them. There is no duty for anyone to administer an insolvent estate. That the only people who appear to lose out from this situation is their firm, therefore I believe there is a conflict of interest, nothwithstanding the fact that I have grave doubts about the level of service they provide as evidence by my previous complaint to the ombudsman and a currrent complaint they have yet to respond to, and that I feel that they are dealing with the matter in a prejudiced manner given the complaints I have made.

I also want to ask them to confirm by the end of tomorrow whether or not there is a more recent will and what information they require from us to prove her financial position, and that if I do not hear from them I shall proceed on the basis that they have agreed to stand down.

Obviously I shall try not to use such long sentences and huge number of commas. I am so angry and upset with them. We just want to bury our mother and get on with grieving and not deal with such selfish, callous turds.

Is this the right thing to do?Is it stipulated anywhere that there is no duty to to administer an insolvent estate?

Thank you in advance for any guidance/advise

thorsoak

Firstly, my condolences on your loss, and sympathy for the situation that you find yourself in. However, I suggest that you remove the names in the correspondence that you've copied into your post .....so that no complaints can be laid against you!

Someone with more current experience on your situation will no doubt post later today. x

Blinkin73

Thank you. I have removed the names

Crabapple

Okay, leaving aside the other issues you have had with this firm, I actually don't think they are being unreasonable about the administration or that they would be saying anything different if you had not complained about them previously.

If they renounce and no-one takes up the grant they might still find themselves liable. From their point of view they cannot be sure that everything is dealt with correctly (even if that is just notifying the creditors to say the estate is insolvent and no-one is going to administer it) if they don't do it themselves. This is why they are asking for a renunciation and indemnity from you. It's quite normal to charge a fee for preparing those documents and charge it to the family who are asking.

I don't see that they are presuming you and your brother are taking out a grant, just that they want you both as next of kin and the people asking, to indemnify them.

I think you need to just sort the funeral out and get a bill from the funeral director which can be paid from the bank account - they will raise a cheque payable to the funeral director.

Don't do anything else as you might be seen as intermeddling and that is only going to confuse matters. Tell the solicitors that you have done that and are doing no more.

There's no need for a renunciation really and you certainly don't want to get involved with giving an indemnity, just arrange to bury your mother and leave things there.

rpc

Don't get them to renounce - if they want to work on an insolvent estate then that is on their head. You certainly shouldn't get involved!

What you do want is for them to agree to let you arrange the funeral.

You could probably do the funeral anyway, but best that the executors know what is going on. Banks will usually pay an invoice from the funeral director directly, not necessarily any need to involve the executors.

Blinkin73

Thank you so much for the advice.

I appreciate that the firm may require us to pay for a deed renouncing their role. Many do this for free though so I am told. I am very suspicious of the idemnity. I and my brother have come to the same conclusion as yourselves, we pay for as much of the funeral from what is in her account as we can (£3500) making up any shortfall ourselves and leave the solicitors to deal with the rest as they see fit. My mothers bank has agreed to allowing us to access the funds for her funeral which we hope to do soon.

RAS

You do not need to get the solicitors to renounce their executorship.

All you need to do is check whether they need a copy of the death certificate or a real one as evidence of her demise.

Get the funeral directors to bill the bank account and send the solicitors details of the bank account, plan and credit cards.

Then leave them to it.

Mojisola

Blinkin73 wrote: »

I appreciate that the firm may require us to pay for a deed renouncing their role.

No, you don't. Follow RAS's advice.

You're not asking them to step down from the role so that you can do it yourself. You just want the funeral paid for and leave them to act or not as they wish with the estate.

Blinkin73

Thank you all for your replies. My brother and I shall do as little as possible so that we are not accussed of intermeddling. We will register her death shortly and obtain a death certificate and the bank will then release the funds in her account to the funeral directors upon an invoice being produced. We will inform the solicitors of this and then they can do as they will. We can ill afford to pay further bills as my mother started a funeral plan 3 months ago which will of course not pay out but at least that was clear as to the burial plot and coffin she wanted. We want to "top up" the funds in her bank account from our funds to ensure that these wishes are observed.

getmore4less

Funeral, claim the money and walk away.


I assume the delay in registering the death is waiting on the coroner otherwise you are late.

Mojisola

Blinkin73 wrote: »

We want to "top up" the funds in her bank account from our funds to ensure that these wishes are observed.

I wouldn't put money into her account.

Pay the extra directly to the funeral director.