Probate, executors who lack capacity and property sale

NedS

Hi all,

Dad has recently passed and I'm seeking some advice on a number of issues:

Mum and I are executors of Dad's will. Mum lacks capacity - I have enduring PoA for mum, registered with the OPG. What process do I follow to remove/renunciate mum as an executor given her lack of capacity (PA15? PA14?) with respect to any application for probate, assuming I need to remove her?

We were in the process of selling the family home, jointly owned by mum and dad as Tenants in Common, with me acting independently as PoA for both mum and dad. Since dad has passed, and my PoA for him ends, presumably probate will now be required to sell the property, which may delay the sale (although I live in hope of a quick grant of probate via online application as described by some applicants here).

I believe the estate will be a simple excepted estate, as there are no IHT issues. The estate will be less than £325,000 including their 50% share of the property, so hopefully any probate application will be really straight forward (and quick).

The will leaves dad's share of the property in trust to me, with mum retaining rights to live in the property although she has recently moved into a care home, hence the sale to pay her fees. Am I correct in thinking that the trust comes into effect immediately upon death? As an alternative to probate (should it not be granted quickly), can mum as legal owner of the property, and with a death certificate and copy of dad's will, apply to update the land register title to add the trustees of the trust of dad's will as the other Tennant in Common, allowing sale with the two acting parties now being me as PoA for mum as one joint owner, and me (and mum) as trustees for the trust as the other joint owner? Although I note the land registry are not particularly quick in turning stuff around either, so this option may be no more attractive than applying for probate?

Obviously the concern here is that we do not want to unduly delay the sale of the property, so trying to work out which path/process I should follow.

FlorayG

I don't think you need to remove your mother as executor. My sister and I were joint executors on my dad's will and my sister did zilch, didn't even make contact with me about it.

Any executor can decline to act

RAS

Read the will with extreme care, if necessary get legal advice on this specific point.

The will tells you how dad's half of the house is to be treated if the house is sold before mum dies.

It may specifically allow that to be disbursed to the remaindermen. It may require that the value is invested and mum is entitled to the income from that investment until her death.

So read the will and check exactly what is says and what that means.

Keep_pedalling

You are going to need probate as the legal ownership of your father’s goes in to trust (beneficial ownership with your mother). As your mother cannot relinquish her powers to act you need to declare that she is unable to act as executor due to loss of mental capacity (reason F). The probate office may then request that her condition be confirmed by her doctor.

Yes the trust comes into immediate effect. But you need to check the exact wording of the will to see if it contains any clauses about what happens to the proceeds of his share if the home needs to be sold. Typically it would stay in trust with your mother benefiting from the income.

One other thing to check is that the tenancy of the house was actually severed when the will was made. It is not unknown for this not to be done leaving the home as joint tenants which would cause the trust to fail and your mother to inherit by survivorship.

p00hsticks

https://forums.moneysavingexpert.com/discussion/comment/82141728#Comment_82141728

From past experience (although it may have changed since) even if a second named executor hasn't been involved in the process at all, I believe there is a part of the online probate process that requires them to agree to the submission.

NedS

Thanks everyone.

@Keep_pedalling wrote:

You are going to need probate as the legal ownership of your father’s goes in to trust (beneficial ownership with your mother). As your mother cannot relinquish her powers to act you need to declare that she is unable to act as executor due to loss of mental capacity (reason F). The probate office may then request that her condition be confirmed by her doctor.

That is a concern, as a potential for delay. Having already failed a Care Act assessment (found to lack capacity), and having already registered her enduring PoA with the OPG based on that failed Care Act assessment, why would the probate people require further evidence of her lack of capacity to act?

What is the best way to proceed (my definition of best being the route which minimises the potential for delay)? Can I proceed without removing mum, naming mum as the second executor in my online application?

Yes the trust comes into immediate effect. But you need to check the exact wording of the will to see if it contains any clauses about what happens to the proceeds of his share if the home needs to be sold. Typically it would stay in trust with your mother benefiting from the income.

Indeed, the wording of the trust gives mum rights to reside, and rights to income from the trust should the property be sold. The trust may also end with written consent. I'm not too concerned with that for now - we need to get to that point first and not lose the currently agreed sale of the property due to any lengthy delays in obtaining probate and our ability to proceed to exchange contracts. We can discuss the practicalities of managing a trust creating income for one whilst preserving capital value for another down the line.

One other thing to check is that the tenancy of the house was actually severed when the will was made. It is not unknown for this not to be done leaving the home as joint tenants which would cause the trust to fail and your mother to inherit by survivorship.

I assume it's all been done correctly, as best I can tell. The property title was originally held only in dad's name (not uncommon at the time of purchase back in the 60s, maybe) so there was no joint tenancy to sever? The solicitor who drafted the will also dealt with updating the land registry to add mum to the title as Tenants in Common at the same time (I have copy of the correspondence), and I can see the restriction no disposition by a sole proprietor… on the land registry title for the property with the date that restriction was added (together with the same date the proprietors were updated for the addition of mum)

Keep_pedalling

The full wording under the notes for reason if is as follows:-

If you state that an executor lacks capacity and are incapable of managing their property and financial affairs, when we receive this application we may send a medical certificate for the executors’ doctor to sign.

If you do not already have medical evidence from a qualified practitioner or are using a registered LPA a short form of medical. evidence will be required.

As you already have proof through the Registered EPA that should not be necessary. Unfortunately delays in applying for probate seem to be a bit of a lottery some go through in days others take many months.

NedS

https://forums.moneysavingexpert.com/discussion/comment/82142068#Comment_82142068

Thank you.

I have just been reading and noting the same from the postal application form PA1P.

In my case, I have a registered EPA (not LPA) for mum. I wonder how that differs in respect of applying for probate? Surely if a medical form PA14 is required for a registered LPA, it would also be required for a registered EPA although that is not explicitly stated. Have they just omitted to specifically mention registered EPAs as these were phased out almost 20 years ago now.

Maybe a silly question - but can we simply complete the probate application online and list mum as the second executor who is applying? Would failing to declare that mum lacks capacity be an issue given she is not going to be undertaking any executor actions? Will they join up the dots from a cross reference search to see she has a registered EPA which indicates that she lacks capacity to act as an executor.

I don't relish the thought of having to get mum's GP surgery to complete form PA14 as they are worse than useless.

I'm trying to keep it as simple as possible in the hope we may fall into the category of applications that go through in days rather than many months.

poseidon1

I believe @Keep_pedalling is correct, you have no option but to proceed with probate ( in respect of your father's estate ) in order to complete the sale of the property in your dual capacity as attorney on your mother 's behalf ( for her half share) and executor/ trustee of the trust emerging from your father's will in respect of his half share. As you say your power of attorney on his behalf died with him.

The complication of your mother also being co executor/ co trustee, has to be dealt with so that you can obtain probate solely, @Keep_pedalling has outlined that process. PA14 would appear to in point, your mother has no capacity to make a PA15 renounciation. Sounds as if you may be stuck with a PA1P paper probate application accompanied by the PA14.

Comments by others that you simply ignore her status and proceed as if she has no legal standing that needs to be addressed for probate purposes, I believe to be misplaced. Clearly when you submit the will for probate her name appears as executor/trustee. One way or other, her absence from the probate application process has to be explained.

Unfortunately getting probate and completing the sale is only the start of your difficulties once the proceeds are recieved and formalities to get the trust underway commences, but perhaps deal with those hurdles when it becomes necessary to do so.

NedS

https://forums.moneysavingexpert.com/discussion/comment/82142112#Comment_82142112

Thank you.

Reading through form PA1P for information, I agree that mum must either apply for probate or complete section 3.6 to give the reasons why she is not applying for probate (Reason F, with accompanying PA14). Just ignoring her is not an option.

Are you saying if I go this route it must be a paper application with accompanying PA14, i.e there is no option to make an online application and submit the PA14 paper form together with the original Will and death certificate (I've not looked through the online submission process, only the paper PA1P to give me an indication of the questions asked and information required).

However, it does not state anywhere that mum cannot apply for probate along with me. Can I simply apply for probate online listing both mum and myself as the two executors applying for probate? I cannot see anywhere where it states she must have capacity to apply, only to demonstrate her lack of capacity if she is not applying for that reason.

p00hsticks

In my case, I have a registered EPA (not LPA) for mum. I wonder how that differs in respect of applying for probate? Surely if a medical form PA14 is required for a registered LPA, it would also be required for a registered EPA although that is not explicitly stated. Have they just omitted to specifically mention registered EPAs as these were phased out almost 20 years ago now.

As I understand it, the difference between EPAs and the more recent LPAs is that EPAs only had to be registered with the OPG when the donor has lost capacity,whereas LPAs are registered stragiht away as part of the creation process. .

So while an EPA being registered would indicate the donor has lost capacity, the same doesn't follow for an LPA and so further evidence of incapacity might be needed.

It might be worth contacting the Probate office to clarify if they need a PA14 with a EPA.