Is this mis-use of estate funds?

Yorkshireman99

royw wrote: »

Thank you all for your replies. From Kynthia's reply above - does this not mean that A's insistance that PP be obtained to improve the existing asset must fail? If so surely the solictor should know this so seeking council becomes a back-covering exercise?
If executor wasn't a solicitor I would agree the need to seek council. But executors are now two solicitors who have to seek council from a third. Am I cynical or are they incompetent/milking it?

Yorkshireman - what further informaion are you looking for?

Difficult to say but in a case like this there could be all sorts of things. I would hope, but can't be sure, that the solicitor who is executor is acting in an honest way. The problem is that the solicitor is likely to be damned if they do and damned if the don't. I don't envy them.

royw

Yorkshireman99 wrote: »

Difficult to say but in a case like this there could be all sorts of things. I would hope, but can't be sure, that the solicitor who is executor is acting in an honest way. The problem is that the solicitor is likely to be damned if they do and damned if the don't. I don't envy them.

I am starting to think the solicitor just doesn't know what she's doing. She didn't know what to do with overseas shares and complete change from assent of property itself to selling & dividing the money. This might be why she needs back up if it is to be sold.

getmore4less

royw wrote: »

Thank you all for your replies. From Kynthia's reply above - does this not mean that A's insistance that PP be obtained to improve the existing asset must fail? If so surely the solictor should know this so seeking council becomes a back-covering exercise?
If executor wasn't a solicitor I would agree the need to seek council. But executors are now two solicitors who have to seek council from a third. Am I cynical or are they incompetent/milking it?

Yorkshireman - what further informaion are you looking for?

Seeking council is not just any old third solicitor it will be a Barrister.

Mojisola

royw wrote: »

Executors are a solicitor & aged relative who has handed over responsibilty to another solicitor at the same practice via POA.

A threatens to sue executors if not sold for best value which in A's opinion means obtaining PP.

getmore4less wrote: »

Seeking council is not just any old third solicitor it will be a Barrister.

They would be crazy not to seek advice when one of the beneficiaries is threatening to sue them.

Yorkshireman99

royw wrote: »

I am starting to think the solicitor just doesn't know what she's doing. She didn't know what to do with overseas shares and complete change from assent of property itself to selling & dividing the money. This might be why she needs back up if it is to be sold.

There is no need for the property to be sold unless the will specifies so! This would cost money that need not be spent. The executors can just transfer the title to the two beneficiaries in their joint names. That way the two can fight it out between themselves. Iit is NOT the executor's function to do it for them.

securityguy

royw wrote: »

Thank you all for your replies. From Kynthia's reply above - does this not mean that A's insistance that PP be obtained to improve the existing asset must fail? If so surely the solictor should know this so seeking council becomes a back-covering exercise?

They aren't seeking council, in the general sense of asking advice. They are seeking an opinion from counsel (note the spelling), in other words a barrister. Not a solicitor. A counsel's opinion is "if this matter came to trial, do you think it would be arguable, and how do you think it would go in court?" Counsel's advice is not only a matter of legal fact, but an assessment of how case law and the latitude accorded a judge would play. Solicitors (other than the relatively unusual and recent development of solicitors with appearance rights) don't have the skills, training or experience to make these judgements.

If there is a chance that a matter might come to court and the legal position is not clear cut - and contested probate is an extraordinarily messy business, built on a rickety platform of case law dating back centuries which intervening primary legislation has not overturned - then solicitors would be foolish not to take take counsel's advice, or even that of "senior counsel" (usually a QC) so that they can show that they have considered their position carefully.

Keep_pedalling

Yorkshireman99 wrote: »

There is no need for the property to be sold unless the will specifies so! This would cost money that need not be spent. The executors can just transfer the title to the two beneficiaries in their joint names. That way the two can fight it out between themselves. Iit is NOT the executor's function to do it for them.

But can one beneficiary insist on cash rather than being lumbered with half a house they don't want?

The main problem here is not the executor but the beneficiaries.

If the OP is one of the beneficiaries they need to sort this out with their sibling, and whoever the would be property developer is needs to realise that they cant do this without the agreement of their sibling, so if that is not forthcoming and they cant afford to buy the sibling out they may as well forget it as far as this house is concerned.

securityguy

Keep_pedalling wrote: »

But can one beneficiary insist on cash rather than being lumbered with half a house they don't want?

Depending on the wording of the will, yes. If the house is in the residue, rather than a specific bequest, then they can absolutely demand that they receive it as cash; indeed, I suspect that they would have to specifically agree to receive anything else, and the executors would not be obliged to listen (ie, I think that even if the beneficiaries want the property, the executors are entitled to sell it anyway and hand over the cash, but I would welcome correction).

If one party demands cash, and the estate does not have enough money to pay them, then the property will have to be sold by the executors anyway; the executors certainly cannot insist that an unwilling beneficiary receives a share of a property via the residue. One can imagine an estate with as much cash as property and two residual beneficiaries, only one of whom wants cash, where this wouldn't be true, but it doesn't sound as though that is the case here.

It is different for specific requests: if the will explicitly leaves a share of a house to beneficiaries, that is what they get, and a sale is then a matter between the beneficiaries and not the executors.

royw

Getting confused here. Securityguy says B can insist on cash, Yorkshireman says executors can choose to assent the property (a situation neither A or B wants). Who is right?
And if B can insist on cash what is the point of counsel as it must be sold anyway assuming insuffcient cash for payout?
Property is residue and not specifically mentioned in the will.

Thanks for explaining counsel - even more expensive as barrister involved!

Keep_pedalling

royw wrote: »

Getting confused here. Securityguy says B can insist on cash, Yorkshireman says executors can choose to assent the property (a situation neither A or B wants). Who is right?
And if B can insist on cash what is the point of counsel as it must be sold anyway assuming insuffcient cash for payout?
Property is residue and not specifically mentioned in the will.

Thanks for explaining counsel - even more expensive as barrister involved!

Remember that none of us here are qualified legal experts and even solicitors who handle estates on a regular basis, do not nessarily have the knowledge to handle contentious estates which is what we have here. Worse case scenario is that it ends up with a court making the final decision, resulting in both beneficiaries losing lots of money and never talking to each other again.