Executors - Didn't do anything. What now?

dinglebert

Firstly: Scottish Law

In short. My father died 13 years ago. While we, as children, never saw the will we were informed by my mother than his half of the house was given to us. In part this was to reduce what could be taken potentially at a later date from my mother if she ever had to pay for support or for nursing home care.

However moving forward to now. The house is up for sale and offer made. The idea is my mother now moves to more appropriate accommation with no stairs. However, we now discover house is still in their joint names and that the executors didn't actully do anything. The then solicitor has long retired but there is a note on the file which stares no action required.

Now it would seem we are going to have to go down the route of having my fathers will carried out today which is going to delay the sale of the house, cost large amounts of money and frankly cause a lot of upset which shouldn't be needed.

Where do we stand? There were two executors, one now dead.

unforeseen

Have you a actually had sight of the will?

How is/was the house held? Joint or tenants in common? Sorry, don't know the Scottish terms for those.

dinglebert

The first time I have had sight of the will was last week. The house was in the joint names of my mother and father. There was a small mortgage on the house which again was still in their joint names.

The will left his half of the house to us as children. What is happening now is that the solicitor is now having to go to court to transfer the house now as the will stated. Obviously the costs of doing so are now far higher than 13 years ago. My mother can't sell the house as she technically doesn't own it all. We can't sell it as the joint owners as we don't own it. My father can't sell it as he is dead.

Mojisola

dinglebert wrote: »

The first time I have had sight of the will was last week. The house was in the joint names of my mother and father. There was a small mortgage on the house which again was still in their joint names.

The will left his half of the house to us as children. What is happening now is that the solicitor is now having to go to court to transfer the house now as the will stated. Obviously the costs of doing so are now far higher than 13 years ago. My mother can't sell the house as she technically doesn't own it all. We can't sell it as the joint owners as we don't own it. My father can't sell it as he is dead.

There are two ways to own a house - 'joint tenants' where both of you own all the house and 'tenants in common' where you each own a part of the house. If the split isn't specified, it's take to be 50/50.

If the house was owned as 'joint tenants' then the whole house is automatically owned by the survivor and none of it can be left to other beneficiaries in the will.

dinglebert

Mojisola wrote: »

There are two ways to own a house - 'joint tenants' where both of you own all the house and 'tenants in common' where you each own a part of the house. If the split isn't specified, it's take to be 50/50.

If the house was owned as 'joint tenants' then the whole house is automatically owned by the survivor and none of it can be left to other beneficiaries in the will.

I can't answer directly as to how the house was owned, other than to say that when the will was given to the solicitor who is handling the sale of the house he started the whole transferring my fathers share to us process.

Mojisola

Is the property registered at the Land Registry?

https://www.gov.uk/search-property-information-land-registry

Sorry - Forgot you are in Scotland - https://www.ros.gov.uk

unforeseen

It seems in Scotland the 2 options are

Joint ownership with survivorship clause - equates to English joint tenants

Joint ownership WITHOUT survivorship clause - equates to tenants in common .


I am assuming there was no survivorship clause.

However the problem at time of the father's death would be if the children were under 18 the law would not have allowed them to be part owners.

Would this area of the will then fail and the father's share be treated as part of the residue, assuming wife gets residue after any bequests? This would explain why no action was taken assuming no other bequests.

dinglebert

unforeseen wrote: »

It seems in Scotland the 2 options are

Joint ownership with survivorship clause - equates to English joint tenants

Joint ownership WITHOUT survivorship clause - equates to tenants in common .


I am assuming there was no survivorship clause.

However the problem at time of the father's death would be if the children were under 18 the law would not have allowed them to be part owners.

Would this area of the will then fail and the father's share be treated as part of the residue, assuming wife gets residue after any bequests? This would explain why no action was taken assuming no other bequests.

All children well over 18 at the time

dinglebert

Moving this forward. Now the lawers are having to take forward my fathers will as directed at the time. Of course this will take money and time. The split will be the value of the house at time of death and not current 50% value, however, they will of course charge their current hourly rate and not the rate in 2003.

getmore4less

Should be at current value if you got 1/2 the house, you still have 1/2 a house.

antrobus

getmore4less wrote: »

Should be at current value if you got 1/2 the house, you still have 1/2 a house.

The value for probate will be the value at the date of death, sometime in 2013 presumably. The beneficiaries inherit the asset at its probate value. But the OP and siblings will get half the proceeds when the house is sold, because the "have 1/2 a house."

And depending on what growth there has been in house prices in whatever part of Scotland the OP's mother resides, this may well give rise to a profit, on which CGT may well be payable.