Pulling out of an executorship

GaryBC

Hi all

Deep breath...... 

My wife's sister died last week and my wife is named on the Will as one of two executors (the other being the deceased's husband).

Due to family problems my wife will be pulling out of the role of executor. We downloaded form PA15 but, as the form doesn't say what to do with it, I phoned HMCTS. They told me to give the completed form to the other executor for him to use as authorisation to process probate on his own. Don't send it to them. 

All well and good so far, but....

My late sister in law's husband has declared he's not going to apply for probate (his choice). In which case my wife's 'resignation' never (legally) sees the light of day and she remains - according to the will - legally responsible for her late sister's estate. This is EXACTLY what she is trying to avoid!

Additional complication (?) ... the only known copy of the Will is a photocopy and the solicitors named on it are long gone.

Any ideas on courses of action? 

Flugelhorn

it may be that the solicitors stuff will have been passed on to another company - there are records when this happens and so he should be able to follow through to find the paperwork

https://communities.lawsociety.org.uk/march-2014/looking-for-a-will/5043901.article#:~:text=From the Law Society Library&text=If your last known information,last known date they existed.

the photocopy is not valid as a will

TBH if there is a husband then likely he inherits everything anyway and if there is no valid will then probate cannot be applied for (would need letters of admin and then intestacy would kick in) and anyway there  is no need for probate so the will will never be public anyway and your wife won't be known as being responsible 

GaryBC

I've been onto the SRA and all the solicitors records have been lost. Whether further digging would unearth the original I don't know.

If the photocopy we have is invalid does that mean that, for all intents and purposes, she died intestate (with all references to 'executors' effectively rendered irrelevant)? 

tetrarch

As it stands right now there is no will as the original is missing. Therefore your Wife has no obligations or responsibilities.

There is a process where a will is lost

https://www.gov.uk/government/publications/report-a-will-is-lost-to-support-a-probate-application

but that will involve someone actively doing something.

As a non-beneficiary (assumption) then the only person incentivised to do anything at all is the Brother-in-law. At some point any assets held in the deceased's name or joint name will likely require probate to be transferred or released. Only then will your Wife be asked or obliged to do anthing - at which point she can refuse and renounce her executorship

The alternative is that the will remains lost, then the intestacy rules kick in which have no need for your Wife to be involved whatsoever

Regards

Tet

GaryBC

tetrarch said:

As it stands right now there is no will as the original is missing. Therefore your Wife has no obligations or responsibilities.

There is a process where a will is lost

https://www.gov.uk/government/publications/report-a-will-is-lost-to-support-a-probate-application

but that will involve someone actively doing something.

As a non-beneficiary (assumption) then the only person incentivised to do anything at all is the Brother-in-law. At some point any assets held in the deceased's name or joint name will likely require probate to be transferred or released. Only then will your Wife be asked or obliged to do anthing - at which point she can refuse and renounce her executorship

The alternative is that the will remains lost, then the intestacy rules kick in which have no need for your Wife to be involved whatsoever

Regards

Tet

Thanks Tet, that makes sense (yes, my wife's not a beneficiary). 

Flugelhorn

GaryBC said:

I've been onto the SRA and all the solicitors records have been lost. Whether further digging would unearth the original I don't know.

If the photocopy we have is invalid does that mean that, for all intents and purposes, she died intestate (with all references to 'executors' effectively rendered irrelevant)? 

yes that is correct - there is no valid will so no execs and she was intestate

Keep_pedalling

As your SIL was married there is a good chance that probate may not be required. Does he inherit all of her estate according to the copy of the will? Do they have any children? If they do are they adults?

Being named executor in a will does not mean you are legally responsible for anything unless you actually start administering it

GaryBC

What we've told him is that probate probably isn't necessary all the while every institution is happy talking to him. It only takes one to demand probate though and he'll have to get it.

Ah... The kids... She has two from a previous and he has two from a previous. 'They' have none. The 'Will' gives 50% to hubby and 25% each to HER two. They're all adult now.

Keep_pedalling

GaryBC said:

What we've told him is that probate probably isn't necessary all the while every institution is happy talking to him. It only takes one to demand probate though and he'll have to get it.

Ah... The kids... She has two from a previous and he has two from a previous. 'They' have none. The 'Will' gives 50% to hubby and 25% each to HER two. They're all adult now.

That complicates things somewhat. Assuming her children are adults in your wife’s situation I would inform her children that she is renouncing her powers and pass the PA15 on to them.

Flugelhorn

ah .. the kids indeed,

would have concerns here - he is likely to be better off under intestacy than as per the will 

Keep_pedalling

If the original will was stored with a defunct solicitor, it should still be stored with an alternative solicitor. The SRA should be able to provide your wife with who that is.

https://www.sra.org.uk/consumers/problems/solicitor-closed-down/.