Mum’s estate & step dad complication

Marcon

Sea_Shell said:

xylophone said:

The nuclear option, if he refused to move out could be to stop paying the mortgage and let the lender repossess?

The OP has Probate and is the executor of his late mother's apparently solvent estate.

He has a duty to act appropriately in respect of her liabilities and in respect of any residue left for the beneficiaries.

Taking this "nuclear option" would be grossly irresponsible and quite possibly illegal?

Ok, maybe not then...

However what would happen if there isn't enough ready cash in the estate to pay the mortgage, if all benefits/income of the deceased have  now stopped?

Surely it's not the executors "personal" responsibility to pay it?  

The executors are not responsible for paying the mortgage. The terms of the mortgage will set out what happens when the borrower dies, so it's important to check the paperwork (if you can find it) and let the lender know as soon as possible what has happened - they can supply a copy of the terms if the executors can't locate these.

HobgoblinBT

I suggest that you move the water rates to your ex father in law.  Water rates are the responsibility of the occupant who uses the property, not the owner.  

Have you discussed your relationship with your tenant with your insurance company if you have a homeowner policy rather than a landlord policy?  It would be worth doing so as it may be a problem in the event of having a cause to make a claim.  

We have a family member living in our rented property and they agreed that we could use a homeowner policy rather than a landlord policy due to the family relationship, but we still needed to declare it.

74jax

I agree, I would transfer water and phone/broadband back to tenants. 
The phone could always be knocked off - that way the estate isn't paying for it.
Have you spoke to mortgage company? Do you have a recent bank statement? We any payments to a life insurance company being made? 

relaxtwotribes

If the OP is paying the mortgage then he will/might be getting a right of subrogation, in which case the monies paid will go back to him on sale of the property, provided there is sufficient equity after clearance of the mortgage.  Although someone more informed than me may confirm either way.

Dholking

Marcon said:

Dholking said:

Marcon said:

Dholking said:

Hi all first time posting here and would really appreciate some thoughts/advice. My mother passed away unexpectedly in November 2020, I am an only child and leave with my wife & children. On the day my mother passed away I was ‘informed’ she was actually married to her long term partner who has lived with her since for approx 12 years. I have always maintained a distance from him with little to no relationship due to previous bad experiences with her ex-partners and decided that as long as she was happy I would not have anything to do with him.

My mother had me listed as sole beneficiary and executor of her estate on her will and I have Grant of Probate as of the end of December 2020. The only asset she had was her property which was in her sole name (both on the title and mortgage). There is a not insignificant interest only mortgage that needs to be cleared alongside some other credit card/overdraft debts and therefore I will need to sell the property to repay these. 

My ‘step-dad’ is still living in the property. I have previously and fairly regularly tried to keep him informed about everything although there is a language barrier as he speaks little to no English - he knows that it is my intention to sell the property. Until recently he has been telling me that he will be moving out at some stage noting difficulties to do so because of lockdown however we had a slight mis-understanding over the weekend which resulted in some things being said namely that I couldn’t simply just kick him out (even though I made no mention of this) and that he knew that could if wanted have some entitlement to the estate. 

Although I have somewhat resolved the dispute and got back to what I think is an amicable place I can’t help but be concerned about what his intentions now may be. The property as far as I’m concerned and what my mother always made clear was that it belonged to me/my children. I understand that as per the Inheritance Tax Act (1975) that he could argue that reasonable financial provisions have not been made for him. My mother did not work due to her health (and received whatever benefits she was entitled too) however he has always been self employed and therefore I don’t believe outside of the fact he lived ‘rent free’ he relied on her financially in any way. I should also mention that my mother had organised a post-nuptial agreement which I now have which is signed by both and verified by independent solicitors. 

I’m trying to understand firstly what claim he could have to the estate as I appreciate the post nuptial agreement is not legally binding and am I correct in assuming he would need to bring any such claim before 6 months from the issue of probate (which takes me to June) and what options do I have to remove him from the property if he refuses to leave and let me sell the property?

He does not make any rent payments to me, he pays the gas/electricity bill as that was in joint names previously and so has reverted to him and the council tax (which was in my mothers sole name previously) as when I spoke to the council I advised that he was staying in the property temporarily until he found somewhere and they advised that they would issue council tax bills to him until then. I have transferred water, home insurance and phone/broadband to my name.

Thanks in advance for any advice/help it’s much appreciated.

First thing you need to check is the date of the marriage and the date of the will. If your mother's will was made prior to her marriage and did not specifically include a reference to the anticipated marriage to [name of husband], the marriage will invalidate her will and unless she then made a new one, she has effectively died intestate.

I think you'll need some legal advice on this regardless. It sounds pretty messy and without having sight of all the relevant documents, it's impossible to give sensible advice.

Hi thanks for your reply - I should have mentioned dates sorry. She was married in 2009 as per the marriage certificate and her will was made in 2017  with the post nuptial a few years after the marriage. The will clearly states me as the sole beneficiary and executor. The post nuptial agreement is very clear in that any assets belonging to the individual concerned (including the house) will remain so and the other party in the event of divorce/death will have no claim. This has been signed/dated by mum and ‘step-dad’ and attested by separate solicitors. 

Great - valid will, which certainly helps!

The existence of the post-nuptial strengthens your hand, but if he does decide to claim under the Inheritance Act (he has six months from the date probate was granted, as you rightly say), you won't be able to stop him bringing a claim, but whether it succeeds is another matter entirely. 

I can only repeat my previous suggestion that you do need to get proper legal advice, based on sight of all the documents, if it seems that he is not going to play ball - but (as I'm sure you are keeping in mind), he has just lost his wife and is probably about to lose his home, so it would be no real surprise if he wasn't the easiest to deal with.

Sea_Shell said:

Just another thought...

Is there no life insurance to cover the mortgage?

Hello unfortunately not - I have also checked with mortgage company who confirm no life insurance has been assigned to the mortgage.

Dholking

Marcon said:

Sea_Shell said:

xylophone said:

The nuclear option, if he refused to move out could be to stop paying the mortgage and let the lender repossess?

The OP has Probate and is the executor of his late mother's apparently solvent estate.

He has a duty to act appropriately in respect of her liabilities and in respect of any residue left for the beneficiaries.

Taking this "nuclear option" would be grossly irresponsible and quite possibly illegal?

Ok, maybe not then...

However what would happen if there isn't enough ready cash in the estate to pay the mortgage, if all benefits/income of the deceased have  now stopped?

Surely it's not the executors "personal" responsibility to pay it?  

The executors are not responsible for paying the mortgage. The terms of the mortgage will set out what happens when the borrower dies, so it's important to check the paperwork (if you can find it) and let the lender know as soon as possible what has happened - they can supply a copy of the terms if the executors can't locate these.

Hi the mortgage company are aware that my mother has passed and that I have probate. They have ‘frozen’ any payments however understandably interest is accruing now until the mortgage balance is settled. 

xylophone

Surely it's not the executors "personal" responsibility to pay it?  

It is not the personal debt of the executor - it is a  secured debt of the estate. 

It appears that despite the mortgage loan, an overdraft and credit card debt, the value of the property ( of which the deceased was the sole proprietor) exceeds the liabilities so that the estate is solvent.

The creditors have the legal right to repayment of the debts.

The OP is sole executor and beneficiary and has probate. He has advised the mortgagee and the unsecured creditors of the situation - presumably like the mortgagee, the unsecured creditors will freeze the debt and let interest roll up until the  value of the sole asset of the estate can be realised.

 The OP has insured the property as executor - it seems to me that to minimise the loss to the estate (which must meet the interest payments accruing on the debts), all the utility bills should be met by the widower (as he is using the services) until the property is sold.