Probate dispute between joint executors

markdr1969

Hi, I hope somebody may be able to help with regard to a probate dispute.

I have been named joint executor along with my brother for my late mum's estate. However after discovering my brother was stealing cash from my mum's home the day after she died, and confronting him, he has now refused to sign documents for grant of probate, has stolen all mum's paperwork, including the will and death certificate. He has stated that he will only proceed if I agree to a fixed rate solicitor dealing with probate. I want to continue as executor and fulfil my mum's wishes. Do I have any rights to proceed and how do I go about this without having to pay out solicitors costs? Thanks

BobQ

It is not illegal for an executor to remove the will and personal papers from the property. Refusing you as a joint executor access to them is rather strange. Similarly removing cash is not illegal if it is for safe keeping.

Has your brother taken umbridge with you because you accused him of removing the cash, while all he intended to do is to ensure its safekeeping?

If you do have such a devious brother, I think involving a solicitor is a good idea from your viewpoint. Is your brother suggesting the solicitor becomes the executor or just advises on the legal issues? It would be better if the solicitor became the executor. Either way it will be expensive.

If you tell the solicitor that you have evidence of your brother stealing from the estate your brother might be surprised by what happens next.


Frankly I am puzzled why your brother wants to involve a solicitor. Has he said why?

wwl

In a situation like this where there is clearly no trust between parties, maybe it would be better for a third party to do it to avoid any future arguments.
Failing that is there a 3rd party you both trust, who can determine the figures and for you to then apply for probate.
If a Solicitor hasn't been named as executor you'll probably have to do it in your names anyway, or do a DOV to appoint a solicitor as executor.

Marktheshark

Just apply yourself to administer the estate, it is up to him to object by filing a will and then you get the will.
Youcan file for probate without him and it will then be up to him to throw his hand back in the ring, at which point you can have him removed.

BobQ

Marktheshark wrote: »

Just apply yourself to administer the estate, it is up to him to object by filing a will and then you get the will.
Youcan file for probate without him and it will then be up to him to throw his hand back in the ring, at which point you can have him removed.

OP could do this but cannot apply for Probate. It would be a Grant of Administration. If he produces the Will then it will be a Grant of Probate with both those named as executors. Having someone removed as an executor is neither easy or cheap.

wwl

Is it legal to apply for grant of administration if you know that a will exists?

markdr1969

Thanks for all the advice today
I'm thinking of proposing a number of options to my brother, rather than going down the route of appointing my own solicitor, as the estate is only small and I cannot afford solicitors fees:

1) To allow me to act as executor (in other words doing all the donkey work), running decisions by him before acting on them
2) Asking him to stand down as executor (as he has already told me in writing that he doesnt wish to proceed, but to appoint a fixed rate solicitor) and allow me to proceed alone (dont think he'll agree to this one though!)
3) Appoint his own solicitor to take over his role of executor, allowing me to continue as joint executor with his solicitor (is this a possible option and will I lose out as a beneficiary, or will these costs have to be met by my brother?)

Any further advice would be appreciated, as I'm going round in circles getting all sorts of advice from CAB, free consultations with solicitors and the internet!

Keep_pedalling

Rather than totally stepping down suggest he retain power of reservation. You will still do all the work but he still has the option to get involved later if he wants to. Under those terms he may be more willing to trust you to sort it all out.

You say it is a small estate, if all of it is tied up as cash, and bank accounts, you may not need probate at all.

BobQ

OP the costs of employing a solicitor fall to the estate, so will come off the value of the estate,

You brother needs to understand this is the case if he wants to involve a solicitor. But unless you can resolve your differences with your brother it might be better if both go to a solicitor and get the solicitor to apply for probate on behalf of you both. You both remain in control as joint executors and can decide how much you do and what the solicitor does. You can still do the donkey work.

This comes down to trust, if your brother does not trust you or you trust him,or you cannot work cooperatively together, getting a solicitor to do the work makes sense. If that uses up £5K of the estate then you both need to realise this is the price of your disagreement.

BobQ

wwl wrote: »

Is it legal to apply for grant of administration if you know that a will exists?

Good point. But unless you have the will it is difficult to sya if a valid will exists, all you can say on the application is that you believe one exists but the holder refuses to release it.