Executor won't share Will

clairby

poppystar said:

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. 

Thank you, yes, that's the logical next step. We won't hold out any hope however. To date they've been written to 8 times since 2016, 2 personal letters and 6 from Auntie's solicitor (a very poor one, but the only one in the small town where she lives) They haven't responded or even acknowledged any correspondence at all. I think a last ditch attempt before we go down the torturous legal route is required.

clairby

xylophone said:

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 late 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.

Thank you for that comprehensive response. Lots of interesting points. I shall refer to it when we seek legal advice. Without the Will and Auntie's recall being very poor we are more or less completely in the dark. It feels  vulnerable position to be in so I think legal advice is essential although neither Attorney want this.

xylophone

the late Aunt could.

Have just noticed error - ignore "late"!

clairby

Forgiven....! 😁 Thankfully she's oblivious, bless her. She, and her late husband for that matter, would be  horrified at their antics. 

Savvy_Sue

This is just a thought, and may not be a very good one, but ...

If Uncle had died intestate, everything would have gone to his wife? 

No will has been sent to probate, no will has been produced - so is applying for letters of administration on the grounds of intestacy worth a punt? The executors can then object, and produce a will ...

After all, how can you know there is a will - they may say there is, you may believe there is, but if it cannot be produced ...

clairby

Savvy_Sue said:

This is just a thought, and may not be a very good one, but ...

If Uncle had died intestate, everything would have gone to his wife? 

No will has been sent to probate, no will has been produced - so is applying for letters of administration on the grounds of intestacy worth a punt? The executors can then object, and produce a will ...

After all, how can you know there is a will - they may say there is, you may believe there is, but if it cannot be produced ...

Agreed...someone else suggested similar. It's certainly worth considering as we weigh up the options 

Marcon

clairby said:

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.

You said earlier in this thread that it was tenants in common, but now you say you are waiting for confirmation. Have you actually shelled out £3 and downloaded the deeds from the Land Registry? If you have, apologies - but I'm finding it a bit hard to follow this thread. The words you're looking for are:

No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.

If those words appear, it's tenants in common; otherwise it is joint tenants and your aunt inherited the house automatically when her husband died.

Sea_Shell

Another vote here for applying for Letters of Administration under intestacy and seeing what happens.

What's the worst that could happen?   They come running, waving a copy of the will.

I suppose if LoA are granted and you set about administering the estate, and they still don't come forward, it may be that the estate gets distributed and THEN they produce a will, which MAY include them as beneficiaries.  Not sure what would happen then?

Marcon

clairby said:

xylophone said:

..or they are aware that there is no time limit for administering an estate...

https://www.wrighthassall.co.uk/knowledge-base/removing-and-substituting-executors#:~:text=If a named executor refuses,else to administer the estate.

The Attorneys are responsible for the financial affairs/health and well being of the Aunt.

As such, they need information relating to any money she may be due/any interest other than hers that there may be in the marital home.

It may be necessary for the Attorneys to request the aunt's solicitor to contact her stepsons so as to establish the exact position.

Already been done....numerous times. Always ignored! The solicitor is now saying she's not able to pursue it. 

Why is the solicitor 'not able to pursue it'? Perhaps time to consult someone else and possibly apply for this: https://sintons.co.uk/personal-family-probate/inventory-and-account/

Might get some reaction...

clairby

Marcon said:

clairby said:

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.

You said earlier in this thread that it was tenants in common, but now you say you are waiting for confirmation. Have you actually shelled out £3 and downloaded the deeds from the Land Registry? If you have, apologies - but I'm finding it a bit hard to follow this thread. The words you're looking for are:

No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.

If those words appear, it's tenants in common; otherwise it is joint tenants and your aunt inherited the house automatically when her husband died.

Yes, we were told by her solicitor that 'it was her belief' that it was tennants in common. I say unconfirmed as we have not set eyes on the registry yet. I'm currently awaiting the solicitor to email the copies.