Executor won't share Will

clairby

Mojisola said:

clairby said:

The executors have never applied for probate. They literally took the Will and have sat on it ever since- 6 years now.

clairby said:

 At some point land registry was updated.

How could they update the land registry without getting probate?

How is the ownership described by the LR?

No the deceased updated it sometime before he died(obviously!) I believe it's 'tenants in common' but we're awaiting confirmation on that.

Mojisola

clairby said:

My husband and his cousin have power of attorney for their Aunt who has dementia and is in a care home. When her late husband died in 2015 his sons (and the only executors) from his first marriage came to the house and took away his Will and other papers.

Her property must be sold to pay for her care but her late husband is on the deeds as joint owner.

While you are sorting this out, set up a deferred payment scheme with the council.

They will put a charge on the house deeds and reclaim the money when the house is sold.

clairby

theoretica said:

Can you get a court order to sell the house with unknown second owner(s)?  For anyone to object, they would presumably need to present their claim to be the owner.

I think that may ultimately be what we have to do. It seems such a farce (and an expense) though when there's a will. We stand to gain nothing from any inheritance, but she is frail and vulnerable and we think it's so unfair if them. Poor show given their 'professions'

clairby

Mojisola said:

clairby said:

My husband and his cousin have power of attorney for their Aunt who has dementia and is in a care home. When her late husband died in 2015 his sons (and the only executors) from his first marriage came to the house and took away his Will and other papers.

Her property must be sold to pay for her care but her late husband is on the deeds as joint owner.

While you are sorting this out, set up a deferred payment scheme with the council.

They will put a charge on the house deeds and reclaim the money when the house is sold.

Thats good advice. We'll look into it. Thank you.

Mojisola

clairby said:

My husband and his cousin have power of attorney for their Aunt who has dementia and is in a care home. When her late husband died in 2015 his sons (and the only executors) from his first marriage came to the house and took away his Will and other papers.

What would happen if the POAs applied for Letters of Administration on behalf of their Aunt to deal with her husband's estate?

If the sons wanted to stop the process of dealing with the estate through the intestacy rules, they've have to produce the will.

clairby

Mojisola said:

clairby said:

My husband and his cousin have power of attorney for their Aunt who has dementia and is in a care home. When her late husband died in 2015 his sons (and the only executors) from his first marriage came to the house and took away his Will and other papers.

What would happen if the POAs applied for Letters of Administration on behalf of their Aunt to deal with her husband's estate?

If the sons wanted to stop the process of dealing with the estate through the intestacy rules, they've have to produce the will.

Yes you're quite right. They'd fight it I'm sure, so we'd have to know that we'd have the law on our side. It makes me so angry. One of them is very well known and it's taking me all my moral strength not to threaten to go to the press! I wouldn't of course but I'm just so astounded at his behaviour!

Mojisola

clairby said:

Mojisola said:

What would happen if the POAs applied for Letters of Administration on behalf of their Aunt to deal with her husband's estate?

If the sons wanted to stop the process of dealing with the estate through the intestacy rules, they've have to produce the will.

Yes you're quite right. They'd fight it I'm sure, so we'd have to know that we'd have the law on our side. It makes me so angry. One of them is very well known and it's taking me all my moral strength not to threaten to go to the press! I wouldn't of course but I'm just so astounded at his behaviour!

Once they insisted that there was a will and so intestacy didn't apply, the POAs could pursue their lack of progress as executors.

The sons would find it difficult to come up with a legitimate reason why they haven't dealt with estate yet. 

Is there any possibility in reporting them to their professional bodies - a solicitor appointed as an executor who hadn't moved ahead with probate for so long would be seen as negligent.

It would be worth discussing options with a solicitor.

It must causing so much unnecessary stress for the POAs when they are trying to do right by their Aunt.

clairby

Mojisola said:

clairby said:

Mojisola said:

What would happen if the POAs applied for Letters of Administration on behalf of their Aunt to deal with her husband's estate?

If the sons wanted to stop the process of dealing with the estate through the intestacy rules, they've have to produce the will.

Yes you're quite right. They'd fight it I'm sure, so we'd have to know that we'd have the law on our side. It makes me so angry. One of them is very well known and it's taking me all my moral strength not to threaten to go to the press! I wouldn't of course but I'm just so astounded at his behaviour!

Once they insisted that there was a will and so intestacy didn't apply, the POAs could pursue their lack of progress as executors.

The sons would find it difficult to come up with a legitimate reason why they haven't dealt with estate yet. 

Is there any possibility in reporting them to their professional bodies - a solicitor appointed as an executor who hadn't moved ahead with probate for so long would be seen as negligent.

It would be worth discussing options with a solicitor.

It must causing so much unnecessary stress for the POAs when they are trying to do right by their Aunt.

Thank you  very much for your suggestions...you've raised some good points worth pursuing 👍 We had hoped to get things settled amicably but I think we'll have a battle ahead. Auntie is twin sister to my husband's Mum who died in 2016   also suffering from dementia. My own Mum passed away in April. Incidentally her probate took 6 weeks (This has made me appreciate my good natured brothers A LOT!)
The whole scenario is incredibly distressing, without this additional complication. I hope karma catches up with them at some point! 😏

poppystar

Be interesting to see if it’s tenants in common. Is it possible that the Will left everything to Aunt and so they simply haven’t bothered to do anything with it? Maybe their father was aware of their feelings and wanted to leave it all to his wife? If so, going down the intestate route is unlikely to be challenged. Personally I would send a letter to them now, signed for, asking for any Will to be produced in x days or you will proceed on the basis that no Will must exist. Adding that no response will be taken as acknowledgement that there is no Will. 

xylophone

How could they update the land registry without getting probate?

If the house was owned as T-I-C, probate would not be required to update the register.

The will may have left the Uncle's share to the Aunt outright.  It may have left her an interest in possession. Or it may simply have left it to another party entirely.

Either way, she was the surviving legal owner of the whole property  but the beneficial equitable owner of at least half.

See link in previous cited below.

As the surviving legal owner, she could have requested the removal of her husband's name from the register but left the Form A  restriction in place.

She could have agreed to the inclusion of a new beneficial owner.

She could have agreed to the inclusion of the Trustees of any Trust created under the will.

She could simply have done nothing and left the name of her late husband on the register.

The Attorneys (presumably) have registered the Power with the OPG.

They can now act in any way that the Aunt could.

If the Register  still shows the Aunt and her husband as proprietors,  see  (from link in previous)

As mentioned in the first paragraph, only the equitable title can be held as tenants in common. The legal title must and will always be held as joint tenants. This means that on the death of tenants in common where only one survivor remains, although the survivor does not acquire the equity share left by the deceased, he does become the sole owner of the legal estate. This means he and he alone has the right to deal with the legal title (sell, mortgage, gift etc). He holds the property on trust for himself and the beneficiaries under the deceased’s will.

In order to protect the beneficiaries, when joint proprietors originally decide to hold a property as tenants in common a restriction should be registered at Land Registry. Where the transfer to the proprietors indicates they wish to hold as tenants in common this restriction will be registered automatically. The effect of the restriction is that a disposition (i.e. a transfer or mortgage) by a sole proprietor cannot be registered.

To get past this restriction and sell the property, the sole surviving tenant in common can appoint a second trustee along with himself. This can be done either in the transfer or by a separate deed. The trustee then signs the transfer along with the proprietor and receives the sale proceeds jointly. It is then the responsibility of the trustee together with the surviving tenant in common to ensure that the beneficiaries receive their share. As long as the purchase money is paid to two or more trustees the purchaser is protected from any claim that the beneficiaries might have if they do not receive the money they are entitled to.

It would appear from the above that the Attorneys  ( who have full legal authority to act for the Aunt) could sell the property BUT they would need to know whether there was any other beneficial interest in the sale proceeds.

For example, if the will created an immediate post death interest in possession, did it end with her no longer needing to live in the property so that the equity could pass to the other beneficiaries?

Or did she have the right to income from the invested share of the equity?

The first step must be for the Attorneys to check the Register.