Probate and Solicitors: Is it All or Nothing?

Reed_Richards

What I hope to be able to do is:

1. Become "Executor Dative" (the Scottish term for an executor to someone who died intestate).
2. Value the estate and find that it is below £36,000.
3. Use the small estates procedure (although I haven't yet looked in detail at how that works).

In the highly unlikely event that the value of the estate were to exceed £36,000 I would engage a solicitor to handle the probate.

buddy9

Reed_Richards said:

What I hope to be able to do is:

1. Become "Executor Dative" (the Scottish term for an executor to someone who died intestate).
2. Value the estate and find that it is below £36,000.
3. Use the small estates procedure (although I haven't yet looked in detail at how that works).

In the highly unlikely event that the value of the estate were to exceed £36,000 I would engage a solicitor to handle the probate.

If you apply and are appointed executor dative by submitting an initial writ, the opportunity to use the small estate procedure is no longer available to you.

Reed_Richards

Oh dear, so it's catch 22?  I can't apply to use the small estates procedure without knowing the value of the estate and I have no authority to value the estate without being the executor dative.  That seems entirely perverse but sometimes "the law is an !!!!!!".

Twenty years ago when I did probate for my uncle then as he was a close relative I had keys to his house, could go through his papers and write to all financial institutions where he had savings or investments with a copy of the death certificate and they would provide a valuation.

Now I want to help out with a much more distant relative who was in a nursing home for several years before he died.  Their possessions are in storage somewhere, I don't know where.  All attempts to make enquiries have been met with the response that only the executor dative can be told.  I don't even know if anyone had made a thorough attempt to find a will.

I come back to the question, what do you do if an estate isn't solvent enough to pay a solicitor to handle probate?     

JGB1955

Reed_Richards said:

I come back to the question, what do you do if an estate isn't solvent enough to pay a solicitor to handle probate?     

Walk away?

poppystar

Reed_Richards said:

Oh dear, so it's catch 22?  I can't apply to use the small estates procedure without knowing the value of the estate and I have no authority to value the estate without being the executor dative.  That seems entirely perverse but sometimes "the law is an !!!!!!".

Twenty years ago when I did probate for my uncle then as he was a close relative I had keys to his house, could go through his papers and write to all financial institutions where he had savings or investments with a copy of the death certificate and they would provide a valuation.

Now I want to help out with a much more distant relative who was in a nursing home for several years before he died.  Their possessions are in storage somewhere, I don't know where.  All attempts to make enquiries have been met with the response that only the executor dative can be told.  I don't even know if anyone had made a thorough attempt to find a will.

I come back to the question, what do you do if an estate isn't solvent enough to pay a solicitor to handle probate?     

So who was dealing with the relatives finances for these years? It’s unlikely to have been the home as that would be a conflict of interest. Did he have capacity for the whole time to deal with his own finances? If someone was an attorney for this then it is that person you need to speak to. Can the home not provide those details? I can see why they wouldn’t tell you the actual financial situation but referring you to anyone who might have been dealing with that would seem appropriate. 

Was there not someone with whom the home liaised as well - while next of kin might have no legal standing most organisations require an outside contact for everyone they deal with? 

This seems to be stressing you out already, is there a strong reason why you want to be involved? It can be hard to leave loose ends but this might be a case where that would be the best course of action. Can you also be sure that  noone else is already dealing with the estate? 

Reed_Richards

His finances were dealt with by a solicitor appointed by Social Services.  I have asked that solicitor and they won't tell me, saying they would tell the executor dative when one is appointed.  Back to catch 22.

buddy9

I would recontact the solicitor and advise that you are applying for appointment as executor using the small estates procedure and need a list of assets to enable this to happen. You might get some information on the quantum of the estate.