Changing executorship from solicitors to family

System

This discussion was created from comments split from: Changing Executors and IHT with charity bequests.

Perdusys1955

Can anyone advise onthe best way of changing executorship from solicitors to family?  SIL is still very much alive but in a nursing home.  She suffers from short term memory loss following her stroke in 2022, and while she says she is happy to change executors, our reasoning being as in the above post, she is unlikely to remember that when seeing a solicitor on her own. She does have mental capacity, and can make decisions, but her memory is a problem.  Can the renunciation only take place with  SIL being deceased?   As she is alive, the named solicitors seem to  want her to make a new will, and will want her to go over her assets etc.  As we have been dealing with all her financial affairs since the stroke, she would not remember even if we told her beforehand.  This was the solicitors response to our initial enquiry:

We are in receipt of your email but are unable to provide any advice in this regard until we have seen sight of the death certificate, considered the Will, considered the estate involved and taken identification from those requesting the renunciation.  

As Mrs D is still alive, please contact us at the relevant time you have the above documentation/information, and we shall consider the position in full.  We are unable to discuss Mrs D’s Will with you currently.  

In the alternative, if Mrs D wishes to make changes to her Will we can arrange a home visit, provided she is well enough to provide us with instructions.  Mrs D would need the required mental capacity and would need to demonstrate this by being seen on her own to provide all her personal information, a list of her assets and give reasons for any changes to her previous Wills.  The initial appointments usually takes between 45-60 minutes and a further appointment to visit to sign the Will is also required. 

Would a codicil to the will be an alternative, and if so, would it have to be the same solicitors? If another solicitor can do the codicil, would that be enough for the original solicitors to release the original will?  The existing solicitors seem to have increased their fees for estate management in excess of 4 beneficiaries. When she made the will it was regarded as being an uncomplicated estate with 6 beneficiaries. 

We would be grateful for any advice. 

Marcon

Perdusys1955 said:

Can anyone advise onthe best way of changing executorship from solicitors to family?  SIL is still very much alive but in a nursing home.  She suffers from short term memory loss following her stroke in 2022, and while she says she is happy to change executors, our reasoning being as in the above post, she is unlikely to remember that when seeing a solicitor on her own. She does have mental capacity, and can make decisions, but her memory is a problem.  Can the renunciation only take place with  SIL being deceased?   As she is alive, the named solicitors seem to  want her to make a new will, and will want her to go over her assets etc.  As we have been dealing with all her financial affairs since the stroke, she would not remember even if we told her beforehand.  This was the solicitors response to our initial enquiry:

We are in receipt of your email but are unable to provide any advice in this regard until we have seen sight of the death certificate, considered the Will, considered the estate involved and taken identification from those requesting the renunciation.  

As Mrs D is still alive, please contact us at the relevant time you have the above documentation/information, and we shall consider the position in full.  We are unable to discuss Mrs D’s Will with you currently.  

In the alternative, if Mrs D wishes to make changes to her Will we can arrange a home visit, provided she is well enough to provide us with instructions.  Mrs D would need the required mental capacity and would need to demonstrate this by being seen on her own to provide all her personal information, a list of her assets and give reasons for any changes to her previous Wills.  The initial appointments usually takes between 45-60 minutes and a further appointment to visit to sign the Will is also required. 

Would a codicil to the will be an alternative, and if so, would it have to be the same solicitors? If another solicitor can do the codicil, would that be enough for the original solicitors to release the original will?  The existing solicitors seem to have increased their fees for estate management in excess of 4 beneficiaries. When she made the will it was regarded as being an uncomplicated estate with 6 beneficiaries. 

We would be grateful for any advice. 

I've asked for this to be split to form a new thread, rather than camping on to an old one which isn't quite on the same topic.

You seem to be trying to impose your wishes on SIL (I can only work on what you've written), who presumably appointed solicitors as executors for a reason. I wonder why you feel that reason has changed just because she's had a stroke? If it's a simple estate and you are able to provide much of the input once your SIL has died, that should ensure fees are kept to a minimum.

The solicitors have given you a thoroughly professional reply, even if it's not what you wanted to hear. 

MSE_Stephen

Hi @Perdusys1955

We've split this to new thread for you.

Misha96

Executors can be removed or changed by codicil, assuming your SIL has capacity.

A codicil can be drawn up by anyone, as can a will, and witnessed in the same way. Wills and codicils ought to be stored together but this is not requisite. 

If you want to change your present solicitor for another, your SIL would have to request her original will be transferred. Is she well enough? 

poseidon1

Misha96 said:

Executors can be removed or changed by codicil, assuming your SIL has capacity.

A codicil can be drawn up by anyone, as can a will, and witnessed in the same way. Wills and codicils ought to be stored together but this is not requisite. 

If you want to change your present solicitor for another, your SIL would have to request her original will be transferred. Is she well enough? 

Some further important guidance on executing codicil to wills below - 

https://www.atterburypayne.co.uk/blogs/what-is-a-codicil/#:~:text=A codicil is a legal,while keeping the rest intact.&text=To be legally valid in,requirements as the original will

SiL' s memory lapses coupled with original Will held elsewhere, may make this comparatively straightforward excercise more of a challenge than normal.

Misha96

poseidon1 said:

Misha96 said:

Executors can be removed or changed by codicil, assuming your SIL has capacity.

A codicil can be drawn up by anyone, as can a will, and witnessed in the same way. Wills and codicils ought to be stored together but this is not requisite. 

If you want to change your present solicitor for another, your SIL would have to request her original will be transferred. Is she well enough? 

Some further important guidance on executing codicil to wills below - 

https://www.atterburypayne.co.uk/blogs/what-is-a-codicil/#:~:text=A codicil is a legal,while keeping the rest intact.&text=To be legally valid in,requirements as the original will

SiL' s memory lapses coupled with original Will held elsewhere, may make this comparatively straightforward excercise more of a challenge than normal.

The last Will I put through probate had four codicils, two involving changes in executors. Fortunately, the testator was in good health at the time. There was no problem in the probate process. Sadly, the condition of the OP's SIL makes things difficult for one assumes a well intentioned family.

Perdusys1955

We aren't trying to impose our will on her, this would be done with her express permission. She retains capacity, though being paralysed and unable to care for herself subsequent to the stroke. She has been in a nursing home since 2022.  She has short term memory loss but can make decisions for herself. We think she named the solicitors who made her will as executors because she didn't want to make more work for us after we helped her with probate etc when our brother died. She made the will a few weeks after his funeral during Covid.  Her memory is such that she needs prompting, but would not remember without that.  She has the same capacity as when different solicitors did her LPA's. 

We don't know if it is normal practice for the solicitors to ask for the procedures mentioned in their email if they are asked to renounce executorship. And if it is not permitted and a new will is required if SIL is not deceased. 

In the previous post which was split out, one reply suggested they had no reason to refuse as we have been her financial attorneys, and deal with her day to day affairs.  If they remain her executors, we sould be doing all the work to supply the required information anyway.

Yorkie1

There are two separate issues here:

1. Changing the executors while SIL is still alive. This can be done by SIL either via a new will or a codicil. Neither has to be done by the current solicitors and they do not have any say in the matter (assuming SIL has capacity). In either event, there would need to be independent evidence of mental capacity, possibly from medical witnesses or a solicitor may feel able to agree capacity. Others have commented in more detail and provided links.

2. Renunciation of executorship. This is only done after SIL's death. Any executor, whether individual or corporate can renounce executorship, assuming they haven't done anything with the estate which would constitute 'intermeddling'.

Don't forget that, even if the solicitors are executors, they may be happy for the family to do certain jobs, thus reducing the cost to the estate from the solicitors' fees.

sheramber

Would a solicitor be prepared to act if aware that SIL was being prompted? 

More so if you intend first family to be appointed executor/s

Perdusys1955

Yorkie1 said:

There are two separate issues here:

1. Changing the executors while SIL is still alive. This can be done by SIL either via a new will or a codicil. Neither has to be done by the current solicitors and they do not have any say in the matter (assuming SIL has capacity). In either event, there would need to be independent evidence of mental capacity, possibly from medical witnesses or a solicitor may feel able to agree capacity. Others have commented in more detail and provided links.

2. Renunciation of executorship. This is only done after SIL's death. Any executor, whether individual or corporate can renounce executorship, assuming they haven't done anything with the estate which would constitute 'intermeddling'.

Don't forget that, even if the solicitors are executors, they may be happy for the family to do certain jobs, thus reducing the cost to the estate from the solicitors' fees.

Thank you, that clarifies the situation regarding codicil, new will or renunciation.  It may be best if after again confirming her wishes, we contact a solicitor to explain the situation and ask for their advice.  Her care plan and the DST's she has regarding financing care fees, both state she has mental capacity. The care home staff would also confirm that.  Thankfully we do not need to rush into this as she remains in good health. We  just wanted to  understand legal procedures.

I think we feel that as we would have to produce all the financial details, and we already have experience of probate etc, there is no need to be paying a solicitor for this.