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

wwl

br1anstorm wrote: »

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.
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Have you tried these :
http://www.lawscot.org.uk/find-a-solicitor/
http://solicitors.lawsociety.org.uk/?Pro=True

getmore4less

On this point.

you confirm what I suspected - that there is no regulatory or supervisory authority. Surprising, and disappointing

There is but it is funded by the people bringing the claims to the court and ultimately the estates.

How do we change that?

I suspect the problem is the cost, how would it be funded?

In the UK there are about 1/2 million estates each year, do you review them all?

Only about 1/2 ever get to the issuing of a grant and only about 3% get to pay IHT where HMRC might have a closer look Allthough all will have done capital returns(IHT forms).

We only ever get to hear about the high value cases in the press, a significant nuber of estate would get wiped out if there was any additional financial burdon put into the current administration system.

dashriprock

Can you not simply get a copy of the will from the Scottish probate court/office?

BobQ

br1anstorm wrote: »

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.

The 'supervising authority' is the Sheriffs Court that exists to see that people granted confirmation are authorised to execute a will in accordance with the legal requirements for executing the Will.

The executor is an appointee of the deceased confirmed by the Court and is obliged to follow the law and execute the Will. The Court is the arbitrator of whether they are doing this correctly.

For professional executors there may be some additional leverage from their professional bodies, but ultimately if you are unhappy the Court is the way to challenge their behaviour.

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.

True but that is what you need to do if you have evidence.

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?

Even if it were a legal requirement to have an account, that would not be a right for a beneficiary to access the account.

The important issue is whether the person entrusted by the deceased to do a job has actually done the job. An account is a good idea for the executor as it is an audit trail of what they have done. But unless it is a legal requirement (I do not think it is) not having one is not the issue.

What matters is that if the executor has collected £X are they distribution £X (less any legitimate expenses) and if they have collected £Y from selling assets have they done so at a reasonable price etc.

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.

If the solicitor was appointed as one of a firm then the responsibilities will probably have passed to a successor firm appointed by the regulatory body for solicitors firms.

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.

Are you saying that after two years you have never asked for a copy? It costs £10 or something to get a copy if the executor has been granted it. The document will not only include the Will but will tell you the size of the estate and an inventory of assets (to some level). The executor will not even know you have it. I would call waiting for an unreliable executor to respond a chore: not applying for public document you are entitled to see.

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.

You should get the evidence you can. Confirmation (easily obtained if registered); if it exists check if house has sold (internet); if it has buy a copy of the Land Title (Land Registry, £4 on line) and see who owns it now. The rest is all speculation unless you have evidence of mal-administration.

Ombudsman generally investigate corporate bodies who abuse their position based on some evidence that they have. In this case your relative has appointed people she trusts to represent her after death. A Court has decided that there is no obvious reason to question this decision.

br1anstorm

BobQ wrote: »

The executor is an appointee of the deceased confirmed by the Court and is obliged to follow the law and execute the Will. The Court is the arbitrator of whether they are doing this correctly.

For professional executors there may be some additional leverage from their professional bodies, but ultimately if you are unhappy the Court is the way to challenge their behaviour.

Understood. The tricky part is obtaining hard evidence which could be put to the Sheriff's Court, since the Executor has not (so far) been very willing to provide or share information which would indicate what he has or has not done so far.

Even if it were a legal requirement to have an account, that would not be a right for a beneficiary to access the account.

The important issue is whether the person entrusted by the deceased to do a job has actually done the job. An account is a good idea for the executor as it is an audit trail of what they have done. But unless it is a legal requirement (I do not think it is) not having one is not the issue.

There is no suggestion that any beneficiary should "access" the estate account. Its importance is as an audit trail, not least for the Executor's own purposes, and so that - as you say - beneficiaries actually know what was collected/realised, and how it was distributed. Without that, much remains opaque.

If the solicitor was appointed as one of a firm then the responsibilities will probably have passed to a successor firm appointed by the regulatory body for solicitors firms.

Indeed, and this is precisely what we shall try to discover. But all the information so far is that he (the solicitor) relinquished the role. Full stop. No evidence, so far, that the task was picked up by a colleague or a successor firm.

Are you saying that after two years you have never asked for a copy? It costs £10 or something to get a copy if the executor has been granted it. The document will not only include the Will but will tell you the size of the estate and an inventory of assets (to some level). The executor will not even know you have it.

The explanation is that we had not asked for a copy because until very recently I - and various other relatives - were unaware that we were beneficiaries. We had simply assumed that the absence of any communication from Executors meant that the deceased's assets had been left to others, or charities, or whatever. We took the view that it would not be right to take the initiative and start enquiring because that would look like "hearse-chasing".

There are two other and main beneficiaries - the closest relatives, who have told us that the deceased's house/flat had explicitly been bequeathed to them. They know what is said in the will, and are also the residuary beneficiaries after all other bequests and bills have been settled.

Other relatives have no interest or stake in the property as such, or the proceeds of its sale - which constitute the major part of the deceased's estate. It was only when these two main beneficiaries contacted us that we began to wonder what was going on. This was long after the confirmation/probate had been granted, the property sold and the proceeds of that sale paid out to them. The two principal beneficiaries were curious to know why the other specific financial bequests (to us other family members) had not been paid out, and whether various relatives had received the specific items (sentimental jewellery etc and family heirlooms) apparently left as individual bequests. They are keen to see matters wound up because they are also the residual beneficiaries. But they are now wondering what the Executor is up to. Some of the items identified as specific bequests in the will seem to have "disappeared" (they have not gone to those named in the will); and the inventory of household and personal effects drawn up by the Executor (which we have not seen but apparently now have to obtain from the court) is, according to the main beneficiaries (who have seen it) very cursory and general with no individual items listed.

In the grand scheme of things there is not a lot at stake in terms of assets. The family heirlooms are not hugely valuable except sentimentally, and the "pecuniary legacies" (which are fixed amounts) are not large sums.

But the picture - of an executor who did not contact or inform all beneficiaries, of a second executor (a solicitor) who resigned, of an inventory which is unspecific, of a reluctance to make any payments by cheque, and an apparent strategy of delay on the grounds that items mentioned as bequests cannot be traced - all adds to concern either that the executor is less than efficient, or has ulterior motives. Neither is, on the face of it, evidence of crime or malign intent. But nor does it inspire confidence in the executor's integrity.

Hence my original question as to whether there was some way - short of raising a case through the courts - of having his performance as an executor scrutinised by some sort of professional, independent, overseer.

Keep_pedalling

The executor is under no obligation to keep minor beneficiaries in the loop, and he does not need to supply them with accounts. One executor resigning is not a reason to be suspicious it is not unusual for this to happen. If this solicitor was specifically requested to act personally but is no longer practicing it is understandable.

It also sounds like the executor is in a position to pay out as he has requested bank details. Have you and the other beneficiaries given them these or are you holding back because of your suspicions?

As for the account breakdown, I would certainly lump anything of low value together, so only a few high value items are likely to be listed. The executor really should have already distributed small bequests in the form of gifts, unless they can't be found in which case he should write to the beneficiary when he wraps up the estate, explaining that although they were included in the will the thing they were left cannot be traced.

wwl

This is for England so may be different, but I just received the Proabate Oath paperwork for my mother, and on the back it says, in summary :
The executor shall,
"when required by the court, exhibit in court a full inventory of said estate and render an account"
"when required by the court, deliver up the grant of probate"

Which suggests that the court can request details of what an executor has done, and revoke the grant to an executor.


However I have no idea of what it would take to get the court to do that, and as you say, getting evidence might be a stumbling block.
Being the High Court, I'd imagine it costs a not insignificant sum to just get in the door.

br1anstorm

I began this thread in August 2015. A lot of water has flowed under the bridge since then. I owe it to those kind forum members who replied to my original post, to provide an update.

I posted because of concern - shared by other relatives and initially based largely on circumstantial evidence - that the executor of my elderly aunt's will was, at best, not doing a very good job, and at worst, might be engaged in fraud.

Sadly, it has emerged that the latter is the case. Between us, various relatives and beneficiaries of her will pieced together sufficient information to justify a report to the police. An investigation by the fraud squad, using their powers to access bank accounts etc, has resulted in evidence which has led the police to apply to the courts for an arrest warrant.

The individual concerned has however skipped the country and is believed to be in Hong Kong. The wheels of extradition are slow, but may be turning. Meanwhile all the beneficiaries of the will, who include charities as well as relatives, have lost out.

The key facts uncovered by the police enquiry include

• the executor, a self-designated financial adviser, had taken on Power of Attorney for my aunt some years before her eventual demise;
• over those years he had systematically extracted large sums from her savings for his own benefit and that of his family ("gift cheques" to his young children and others). The figure is reckoned to be somewhere between £300k and £500k;
• having engineered the 'resignation' of the appointed co-executor (a solicitor) on her demise, he - with another solicitor - submitted a massively under-declared statement of the deceased's assets to the Sheriff Court for probate;
• in clearing the deceased's flat and disposing of its contents, this executor destroyed all her financial records, files, and a laptop computer;
• he did convey title to the actual flat to those relatives to whom it was left in the will, soon after her death;
• but he then seems to have left the country;
• his communications to other relatives and beneficiaries about the other bequests turn out to have been delivered via a brass-plate serviced- office address in the UK, while he himself was variously in either Dubai or Hong Kong....

There are some worrying lessons to be learned from this sad story:

1. there appears to be no mechanism for scrutinising or monitoring anyone exercising a Power of Attorney for someone who is still alive but infirm;
2. there appears to be no "quality control" or verification of statements of assets submitted to the courts for probate (or confirmation as it is called in Scotland). The executor is responsible, and the solicitor who actually has to submit the statement is not accountable for any errors or omissions, but simply has to say he was acting on the executor's instructions;
3. beneficiaries of a will appear to have no recourse except if evidence of criminality is unearthed;
4. but even then, there is no prospect of restitution or compensation unless or until after a successful prosecution (and even then, it is far from clear whether there is scope to recover from the fraudsters' assets.... or whether there may be some other mechanism for compensation).

So regrettably it looks as if all concerned - except the fraudster/scammer - will lose out unless the police manage to successfully extradite and prosecute. And on that, we're not holding our breath!

Keep_pedalling

br1anstorm wrote: »

There are some worrying lessons to be learned from this sad story:

1. there appears to be no mechanism for scrutinising or monitoring anyone exercising a Power of Attorney for someone who is still alive but infirm;
2. there appears to be no "quality control" or verification of statements of assets submitted to the courts for probate (or confirmation as it is called in Scotland). The executor is responsible, and the solicitor who actually has to submit the statement is not accountable for any errors or omissions, but simply has to say he was acting on the executor's instructions;
3. beneficiaries of a will appear to have no recourse except if evidence of criminality is unearthed;
4. but even then, there is no prospect of restitution or compensation unless or until after a successful prosecution (and even then, it is far from clear whether there is scope to recover from the fraudsters' assets.... or whether there may be some other mechanism for compensation).

If there was a mechanism for monitoring anyone exercising a PoA, it would unfortunately be a horrendously expensive business, and it would be unaffordable for many people. Attorneys are appointed by the donor and apart from a few checks during the setting up process there are none after that unless someone raises an alarm.

In practice it is down to the donor to choose their attorneys with care and from people they trust. Luckily the vast majority perform their duties honestly.

I do hope this person is returned to the UK and spends some time in jail, but even if that happens it is likely that the money is long gone.

Malthusian

br1anstorm wrote: »

there appears to be no mechanism for scrutinising or monitoring anyone exercising a Power of Attorney for someone who is still alive but infirm

If you suspect that a power of attorney is being abused then you can complain to the Court of Protection. However I appreciate that there may not be any way of knowing that someone with lots of money in the bank has "given" a six-figure cheque to their attorney.

In retrospect there should have been a number of red flags. The very existence of a "self-designated financial adviser" is in itself a red flag - financial advice is regulated in this country and anyone who is purporting to be a financial adviser when they are not regulated as such is committing a criminal offence. It should have been a trivial task to anyone who knew the elderly aunt to check her "adviser"'s bona fides.

To have your "financial adviser" act as power of attorney is an even bigger red flag, because financial advisers generally refuse to act as attorneys, out of their own self-interest. They would have to step down as financial adviser (and lose their fees) to avoid facing an obvious conflict of interest.

I realise this is no help now. Unfortunately when people only start taking an interest when the Will has been read out they are very limited in what they can do.

The reason I say this is that it is important people know that it is very rare for things to go wrong with powers of attorney, especially when they appoint relatives or friends whom they have good reason to trust.

*edit* To expand on what Keep Pedalling said, there already is a mechanism for someone to act as attorney but with constant oversight by the Court of Protection - it is what happens when someone loses mental capacity having not made a lasting power of attorney, and someone is appointed a Deputy of the Court of Protection.

It is a frustrating and time-consuming process and to avoid the unnecessary expense and wasted time is exactly why people draw up lasting powers of attorney.