Will Execution Impasse.

AgitatedCat

England basis.

Homeowner Mr A passes away with three surviving children B and C and D, he also has one sister E.  Each of the sisters get the same nominal amount.  Oldest child is B.

However the execution of the will is held up because child D is staying at the property and won't leave.  D has mild mental health issue (with violent tendencies) and says the house is his.

Mr A has also taken out equity release and the monies to them need to be paid back within a year.

The solicitors is saying because of child D, the equity company may repossess the home which would mean they would have to go to court to recover their money.

The solicitors is seemingly trying to avoid court themselves for some reason, and now this repossession warning has come to fruition.

Why would the solicitor avoid eviction when the ER company will do just that.  Is there some power the lender has the the solicitor doesn't?  And if the solicitor allows the ER firm to repossess through procrastination of up to a year,  could this be seen as a failure to execute the legacy?

Thanks for reading.

xylophone

Is the executor the solicitor?

AgitatedCat

Yes, solicitor is executor.

Mojisola

AgitatedCat said:

The solicitors is seemingly trying to avoid court themselves for some reason, and now this repossession warning has come to fruition.

Why would the solicitor avoid eviction when the ER company will do just that.  Is there some power the lender has the the solicitor doesn't? 

Have you asked the solicitor to explain their inaction?

RAS

Hi, your original explanation of the family structure is unclear.

Who are the sisters who have been left the same nominal amount? As only one sister E is mentioned.

What exactly does the will say about the house? Is the house specifically left to anyone, or is the estate to be divided with no mention of the house?

Does the youngest (occupying) child have any sort of mental health support, who might have very considerable difficulty discussing the situation but might be able to accept information about the impending repossession?

RetSol

I get the impression from your posts, @AgitatedCat, that you are happy for the possession proceedings to proceed but that you want the executors/solicitors to do it rather than the equity release lender.  Is that correct?  If so, what is the reason for your preference?
A delay of one year since the grant of probate is not unusual and not likely, in itself, to be a ground for complaint against the solicitors, particularly where the circumstances are complex, as is the case here. 

Robin9

@AgitatedCat The executorship of the will doesn't change because the ER or solicitor has forced the sale - the estate is essentially still the same only there is no property.

I see no issue with the solicitor - indeed they can be seen as being compassionate in their consideration of child D.

Indeed the ER forcing the sale may the best outcome 

xylophone

https://www.moneyrelease.co.uk/What-Happens-To-Equity-Release-Upon-Death/#:~:text=The Executor of your estate,in line with your will.

Who repays the equity release lender?

The Executor of your estate will have responsibility for repaying the equity release to the lender from your estates worth. This is usually paid from the sale of your home. Any remaining proceeds will then be distributed in line with your will.

The Executor of your estate or Next of Kin will be required to inform the lender of your death. To do this, they will usually require your equity release plan number, so it is helpful to make them aware of these details.

The lender will then send a letter to your Executor requesting that they keep them up to date on how the loan will be paid, and the progress on any sale of the property.

Looking at the above, presumably the Solicitor in his capacity as executor of the estate has advised the ER company of the death of the homeowner.

Presumably he has also had to report to the ER company that he has made no progress with the sale of the property, as one of the beneficiaries of the will is occupying it and refusing to co-operate with viewings etc.

The ER company has advised the solicitor of the action it intends to take?

RetSol

It's frustrating for you, @AgitatedCat, but I think that all you can do is to ask the executors to tell you the state of play, what steps are being taken to wind up the estate and who is taking them.  The impasse may yet take a while to resolve, I'm afraid.

As @Mojisola suggests, ask the executors why they are leaving the possession proceedings to the lender, if that is the case.  One point to bear in mind is that the lender may be able to obtain the possession order at lower cost than the solicitors, if an order is required. 

Personally, I would expect the lender to be the one to seek the possession order in these circumstances. They bear commercial risk here and need compliance with the loan agreement from a business perspective.   Enforcement is their business, as it were.   The executors' considerations are different and less pressing. 

I don't understand the following - 

and if they don't, how does the executorship change once the equity company forces their hand?

[Deleted User]

AgitatedCat said:

Robin9 said:

@AgitatedCat The executorship of the will doesn't change because the ER or solicitor has forced the sale - the estate is essentially still the same only there is no property.

I see no issue with the solicitor - indeed they can be seen as being compassionate in their consideration of child D.

Indeed the ER forcing the sale may the best outcome 

Will the company then honour the will by distributing the remainder by working with the solicitor?

No. The company is simply a creditor. The solicitor will pay them from the estate and then distribute the remainder to the beneficiaries. 

The company has no interest in the will.

[Deleted User]

No, it will apply until the debt is settled.

The creditor will continue to seek to enforce the debt, which may include additional charges, as per whatever is stated in the contract.