Some probate and Will questions

DrDeejUK

My step-dad died a year ago. Before he died he changed his will. This involved severing the tenancy on his house (moved from joint tenant with my mom to tenancy-in-common - 49% his side and 51% hers). However, he took her off as executor and two his children became executors and trustees. She is not mentioned in the will as being either an executor or a trustee. She has been granted the right to stay in the house which is where she still is. My step-dad's side of the house was put into trust My first question is this - what rights does she have now if she is not an executor or a trustee apart from the obvious being able to live in the house? What rights and responsibilities do the executors and trustees have over the house?

After my step-dad died one of the executors got the ball rolling with the probate. It has been 10 months since probate was applied for and the only thing one of the executors has said is that "the paper work has been lost". They haven't been very helpful or communicative about the whole probate situation which doesn't help my mom because there are financial assets (shares, premium bonds et al) that were left to her in the will and she cannot receive these to my knowledge until the will has been proven. What options are there if the executors are not co-operating and can she over-ride them by going for probate herself if she feels they are not complying properly? 

RAS

Apart from the house, what assets did step-father have that were not joint with mum?

With respect to the house, probate is probably not necessary at this stage. Since mum can live in the house, it sounds like step-dad's will set up an Immediate Post Death Interest trust. That should be reported to the HMRC within 2 years of his death, by the executors.

What mum needs going forward is information from the will, does her right to reside end if she remarries, if she sells the house, if she down-sizes does any excess go to his kids or is she entitled to the interest from the capital? Is she solely responsible for repairs? As it is the will that dictates the terms of the Trust.

If his children have any idea of registering their interest in the property as anything other than a revised restriction, they'll be shooting themselves in the foot big time, even if the Land Registry permit it. At best they will be treated as second home owners for SDLT and gain a CGT liability, at worst they lose any first time buyer benefits and gain a CGT liability.

Marcon

DrDeejUK said:

My step-dad died a year ago. Before he died he changed his will. This involved severing the tenancy on his house (moved from joint tenant with my mom to tenancy-in-common - 49% his side and 51% hers). However, he took her off as executor and two his children became executors and trustees. She is not mentioned in the will as being either an executor or a trustee. She has been granted the right to stay in the house which is where she still is. My step-dad's side of the house was put into trust My first question is this - what rights does she have now if she is not an executor or a trustee apart from the obvious being able to live in the house? What rights and responsibilities do the executors and trustees have over the house?

After my step-dad died one of the executors got the ball rolling with the probate. It has been 10 months since probate was applied for and the only thing one of the executors has said is that "the paper work has been lost". They haven't been very helpful or communicative about the whole probate situation which doesn't help my mom because there are financial assets (shares, premium bonds et al) that were left to her in the will and she cannot receive these to my knowledge until the will has been proven. What options are there if the executors are not co-operating and can she over-ride them by going for probate herself if she feels they are not complying properly? 

If your step dad only died a year ago, it's highly unlikely that probate was applied for 10 months ago (ie two months after the death), so I'd take that with a pinch of salt. I'd try to clarify what 'the paperwork has been lost' refers to - the application, other documents...?

Rights and responsibilities are (hopefully) set out in the will eg keeping the house in good repair, paying for insurance etc. Has she/you seen the will?

Your mom certainly can't override the executors and 'go for probate' herself. From what you've said it sounds as if the two executors might be out of their depth and fobbing her off to conceal the fact. If so, possibly the starting point is to try and have a relaxed (I know, difficult) conversation with them to see what help she can offer, if any.