Rent not paid house pre probate

TamaraD

Hi we are in the position of having a tenant not paying rent (£8000 approx due) refusing to leave. WE have been to county court and we have been told we cannot be awarded an eviction order until probate is granted. We are currently in dispute with one of the executor/beneficiary and at stale mate with regard to completing probate. 
Can anyone help with any advice as to how we move forward as probate is a distant wish. Can this tennant just live there rent free

doodling

Hi,

If you don't already have it, you need specialist legal advice for this.

What exactly was said, and by who, at the county court?

doodling

Hi,

To add:

Shelter suggests that you can apply for possession before probate but a tenant can ask for the order to be stayed until after probate has been obtained.  Is that what happened here?

Hoenir

Before taking the matter to County Court. Did you seek legal advice? 

TamaraD

I didnt ask advice just applied to the court under the Estate of the late person, with me acting as executor

Hoenir

TamaraD said:

I didnt ask advice just applied to the court under the Estate of the late person, with me acting as executor

Waste of the courts valuable time then. 

Linton

TamaraD said:

I didnt ask advice just applied to the court under the Estate of the late person, with me acting as executor

Surely you ca'nt "act as executor" until you have probate. One of the purposes of probate is to confirm the authority of the executors to administer the estate.

doodling

Hi,

Linton said:

TamaraD said:

I didnt ask advice just applied to the court under the Estate of the late person, with me acting as executor

Surely you ca'nt "act as executor" until you have probate. One of the purposes of probate is to confirm the authority of the executors to administer the estate.

Legally you can (e.g. an executor can legally sell the deceased's car before probate is obtained) but other parties have the right to say "I don't believe you are the executor, prove it." and the thing that does that is probate.

The authority of an executor (and their ownership of the estate as a trustee) comes from the will, not probate which merely confirms it, but before probate is granted, those are effectively contingent on no-one questioning them.

In this case, it appears that the tenant (or maybe the judge) decided to question whether the executor was in fact the executor.  According to the shelter website the correct thing would have been for the judge to stay the proceedings until probate had been granted but they may have had reasons for a different decision.

molerat

TamaraD said:

 Can this tennant just live there rent free

Pretty much yes until you get a court order to evict them.

So you need to get this executor problem sorted as it is costing all of you money.