Incompetence (or worse) by a will Executor - who to complain to?

br1anstorm

The basic question is not perhaps as simple as it might seem.

i) Who is responsible for overseeing or ensuring that the Executor of a will discharges the duties and obligations properly and correctly?

ii) If there is doubt or concern, to whom should any query or complaint be addressed?

iii) how does the situation, and any complaint or appeal process, differ between England and Scotland?

There is a lot of publicly available guidance (formal legal advice, official government guidance, and information from charities and others) about the duties and obligations of executors. These include the requirement to act in good faith, and to use the powers conferred by the law in the interests of the beneficiaries.

Often, one of the executors of a will is likely to be a solicitor or legally qualified person, who is bound by a professional code of conduct and supervised by a professional body. If doubt arises about that person's integrity or conduct, there is presumably the option of recourse to the Law Society.

But in theory anyone can be nominated by a testator as an Executor. So the question is, if a non-lawyer or private individual is an Executor, who ensures that such a person carries out the task properly? Is there any kind of Ombudsman for such matters?

The essential facts, in the case that prompts this query, are as follows:

• a family relative resident in Scotland died a couple of years ago, at the age of about 90, having made a will under Scottish law;
• so far as the family are aware, she had not given Power of Attorney to anyone else in the period prior to her death;
• she was a widow, and there were no children of the marriage, so insofar as there are "heirs" or next of kin, they are mainly nephews and nieces;
• two Executors were nominated - one a solicitor, the other a financial adviser who had become a close friend of the deceased;
• we have subsequently learned however that the solicitor "resigned" or relinquished his role as Executor, very soon after the relative's demise, leaving the adviser as the only remaining Executor;
• this remaining executor evidently sought "confirmation" (the Scottish equivalent of probate) from the courts so that he could proceed to execute the will and dispose of the estate;
• but although there was some sporadic and reluctant contact between that Executor and some of the relatives who approached him (and who - it has emerged - were among the will's principal beneficiaries having been bequeathed the residential property), the Executor has not communicated with other relatives - some of whom, we have now learned belatedly and indirectly, are also beneficiaries either of specific items or of a share of the residual estate;
• Liaison among the various family members (there are no disputes or divisions) has enabled us to piece together a picture which suggests that this remaining Executor has been either incompetent, or negligent, or possibly dishonest. Hence the question about whom to approach about his performance.

The points of concern include the following:

1) why did the other executor (the solicitor) relinquish his task? Was he "persuaded" to do so? How can we find out?
2) why did the remaining Executor not contact all the beneficiaries named in the will? Is he not obliged to do so? And is he not required to inform them of the provisions of the will and/or provide them with copies?
3) the Executor apparently proceeded to arrange the sale of the deceased's property, and to do an inventory of the deceased's personal effects and household contents, almost all of which were then (we understand) sold or disposed of. The inventory and valuation have only been seen by the two principal beneficiaries - who have commented that it was imprecise, cursory and inadequate.
4) the whereabouts of some of the specifically bequested items (household silver and 'personal' items) are apparently not known. The Executor claims no knowledge and has indicated that he presumes the items were disposed of before the relative died. To the best of the family's knowledge, this is not the case.
5) the Executor has - apparently - not set up a separate account for the estate (which all the guidance says is fundamental). It is not clear how or where he holds the proceeds of the property-sale or of the disposal of household contents and personal effects. But he has contacted various beneficiaries to say that he does not wish to send cheques in payment of their 'share' of the estate when it is wound up, but has asked for their financial and banking details so that payment can be made directly into their accounts.
6) some relatives, noting that the Executor was the deceased's financial adviser, but is not a named beneficiary in the will, have expressed concern at the passage of time (two years) and suspect - rightly or wrongly - that the Executor may be deliberately dragging his feet either because he is somehow continuing to benefit (fees, commission, etc) from whatever savings or investment he may have managed for the deceased, or because he has "something to hide".

These are the main areas of concern. There are other circumstantial aspects which add to the sense of disquiet. The adviser/Executor seems to have no established permanent office but operates out of a "business services" address. He spends a great deal of his time out of the UK. Efforts to contact him are routed through an answering service which undertakes to get him to ring back. Those who have managed to make contact by phone say that he stonewalls or fends off any enquiries. Correspondence is unacknowledged, and he appears to have no email address.

No-one has a clear idea of the value of the estate. The main asset was the property, the value of the personal and household effects was largely sentimental, and no-one knows what savings or investments the deceased may have had. But the fact that the sole executor seems to be accountable to no legal or administrative authority, his conduct in managing the executor task is questionable, and contact with him so frustratingly uninformative, all adds up to a worrying picture.

Unless anyone suggests otherwise, there seems no basis (at this stage) for contemplating formal legal action - which seems likely to be fruitless anyway, not to mention potentially costly. The point at issue is whether he is discharging the duties of Executor properly - and if there is doubt, who can be asked to examine or review his conduct and performance?

getmore4less

who ensures that such a person carries out the task properly? Is there any kind of Ombudsman for such matters?

No one.

if there is doubt, who can be asked to examine or review his conduct and performance?

it is down individuals going to court and reporting crimes

jackyann

In England I would suggest asking the advice of the Probate service - there must be a Scottish equivalent.

SeniorSam

Not sure if the Financial Adviser is governed in the same way as in England and have no idea about Scottish Laws in this respect. However, a Financial Adviser in England has to be registered as such and has to act in a manner that has the best interests of a client. If he does not, he can be prevented acting for anyone again.

This site may be of help https://www.citizensadvice.org.uk/scotland/law-and-rights/civil-rights/complaints/how-to-use-an-ombudsman-or-commissioner-in-scotland-s/

Is the Financioal Adviser someone who works independently, or is part of a larger organisation? Either way, they must have an organisation that governs their conduct and that could be a place to start enquiries.

When I worked as an Independent Financial Adviser, linked to a specific company, we were not permitted to act as Executor in connection to a clients Will, for reasons of remaining independent when offering advice. This may or may not be the same with the Financial Asdviser concerned, you would need to find this out.

In every case I am aware of, an Executor is required to setup a Trustee Bank account to hold all capital until distributed and keep that secure.

Could you not speak nicely with the solicitors that withdrew from their Executorship on the basis of asking for the information you are looking for and expressing your concerns. Maybe expressing the possibility of asking a solicitor to take some action? At the same time you could ask why they withdrew?

At least you would be a step nearer a solution and know where to go to ensure that the FA is acting correctly or not.

Sam

Keep_pedalling

The fact that the executor is a FA does not mean in this case he is acting as such as you say he was a close personal friend, so may be doing this as such and not charging the estate professional fees, but I guess you will not know that until the estate if finally wound up and the accounts are published.

The executor is not obliged to provide details of the will and progress to beneficiaries although they normally would to major beneficiaries.

The problem with leaving specific items to people is that over the years these may get broken, lost or sold, and if the executor cannot trace them then the bequest fails. Yes in some cases these things could be pocketed by an executor but that would be very hard to prove especially for distant relatives who had not seen these items for years.

I don't know if this is a Scottish thing but my wife was the residual and major beneficiary of her Scottish uncle, and the solicitor took 3 years to wind it up and communication was pretty poor over that period. She was the only beneficiary who ended up with the estate accounts and a copy of the will, even the lady who inherited his house did not get that.

getmore4less

In every case I am aware of, an Executor is required to setup a Trustee Bank account to hold all capital until distributed and keep that secure.

This is not a legal requirement in E&W

G6JNS

jackyann wrote: »

In England I would suggest asking the advice of the Probate service - there must be a Scottish equivalent.

Pointless really as you are likely to need to get a court order fro them to act.

Keep_pedalling

Why does the OP suspect the executor has not set up a seperate account? He can't know this one way or another.

BobQ

If the executor has obtained confirmation you can ask for a copy from the HM Commissary Department in Edinburgh. Seems to me that this is a necessary first step in deciding what to do.

Not sure about Scotland but a Trustees accound may be advisable but it is not required in E&W. What is required is that a residual beneficiary of the estate should receive a statement of account for what the executor has received from calling in the assets of the estate and what he has paid out on behalf of the estate.

Two years does seem a long time but if he lives aborad, has had difficulties selling assets, has to settle IHT he may have a legitimate reason for taking this long. Also as he is not a professional paid to execute the will he may have other things to spend his time on. Also, there could be many factors that you are unaware of introducing delays

Find out what he has declared your relative left and what he should have done with those assets. When you have reason to believe he has not done the job correctly, and evidece to support it, take action in the courts or challenge him directly.

wwl

I don't know about differences in Scottish Law, but...

1) why did the other executor (the solicitor) relinquish his task? Was he "persuaded" to do so? How can we find out?

Do you know who he is? If so, have you attempted to contact him?
I assume that like in England, once confirmation is granted the will is public, so you can get the name from that.

But he has contacted various beneficiaries to say that he does not wish to send cheques in payment of their 'share' of the estate when it is wound up, but has asked for their financial and banking details so that payment can be made directly into their accounts.

Seems reasonable as it leaves a more reliable trail. - who uses cheqes these days?

6) some relatives, noting that the Executor was the deceased's financial adviser, but is not a named beneficiary in the will, have expressed concern at the passage of time (two years) and suspect - rightly or wrongly - that the Executor may be deliberately dragging his feet either because he is somehow continuing to benefit (fees, commission, etc) from whatever savings or investment he may have managed for the deceased, or because he has "something to hide".

If he is not a beneficiary, is he actually getting anything for doing the job? If not that may explain lack of effort.

No-one has a clear idea of the value of the estate.

In England, the estate value is on public record along with the will - is Scotland different?

The main asset was the property,

if you don't know what it sold for, the Land registry hold this info. It's available free via some estate agent sites.

br1anstorm

Thanks for all replies so far. Helpful and much appreciated. I won't quote from all in commenting, but will try to cover the main points in the order they appeared.

getmore4less: you confirm what I suspected - that there is no regulatory or supervisory authority. Surprising, and disappointing. At this point (in the absence of firm information/evidence) it is far from clear whether any "crime" has been committed. The question seems to be more to do with (in)competence and (lack of) good faith.

jackyann and G6JNS: I like the idea of trying to identify and seek the help or advice of the Scottish equivalent if there is one of the Probate Service.....but if it really is necessary to get a court order first, then this is hardly an easy route to pursue.

SeniorSam: I believe that Financial Advisers are regulated in Scotland as in England and Wales.... but as Keep pedalling points out, it is not clear whether this Executor is acting as an IFA or just as a "close friend". We have no information on what fees he may have charged - or may in due course charge - to the deceased's estate. On a point of fact, we do know that he is a sole trader or runs his business as an independent individual: he and his wife are the only directors of his registered company (which has only nominal capital/assets), and so far as we can establish he is not part of any IFA organisation or network. He is resident in Scotland .... but just seems to have spent a lot of time abroad in the last 12 months.

SeniorSam and getmore4less: it seems clear that a separate estate account, or trustee account, for the deceased's assets, is good practice, and the normal way to manage the administration, distribution and disposal of the estate. BobQ suggests it is "advisable but not required". But is a failure to set up a separate account just incompetent.... or is it actually negligent? Without a separate account how can there be confidence or clarity about the value of the estate or the accuracy of its distribution?

wwl and SeniorSam: we know the identity of the solicitor who relinquished his Executorship. But the firm or legal partnership for which he worked went into administration (not sure if this was before or after he withdrew) and its business and perhaps some staff were taken over by another law firm. So it is not entirely clear where this particular individual solicitor now is, or for whom he now works. But we have some clues which we might be able to pursue.

wwl and BobQ: we are planning to seek a copy of the will (and if possible the inventory/valuation) from the Sheriff Court if the Executor - from whom we have requested copies - declines, or is not obliged, to provide these to beneficiaries. Seems a gratuitous extra chore but so be it.

However, all the advice so far seems to leave us in something of a Catch 22. We need firm information and evidence in order to mount a query or challenge, yet yet the groundrules and the law seem to make it possible for the Executor to refuse to disclose to beneficiaries the information that might constitute such evidence!

Hence my original question.... posed in the hope that some regulatory body or ombudsman might be in a position to require disclosure. Without that, the Executor seems able to act with impunity and is accountable to no-one.