Probate, executors who lack capacity and property sale

NedS

Thank you both for the ongoing clarifications. At this stage I'm primarily trying to understand my options so I can have a semi-informed conversation with my conveyancing solicitor how best to proceed without being at risk of unduly delaying the sale process and at risk of losing our buyers. Your inputs and advice have been invaluable.

@poseidon1 wrote:

Once sold the solicitor holds the proceeds in two parts, one part which can be transferred to your mother's personal account which you control as P oA on her behalf ( her personal TIC share), but the other part for the trust held in abeyance by the solicitor until you have proved the will ( via probate) to legally establish your status as trustee of the Will trust. I cannot see how you can legally take control of the will trust proceeds without the grant, but at least the sale has not been delayed in the meantime.

Yes, I fully understand that and we will have to deal with that at the time, but first on my list of priorities is to try to ensure we are not unduly delaying the sale process. If there is no sale, the above is yet to an issue. Access to the 50% share of the funds going into trust is not of immediate concern. Mum will not immediately need an income from the trust as she will have her share of the capital from the property sale to fund her care costs, so any delay in releasing trust funds from the solicitor will not unduly affect mum. Mum may likely never need the trust income as her capital share alone should be sufficient to fund her care costs.

@poseidon1 wrote:

In passing since it is not good practice for you to move forward as sole ( competent) trustee of the Will trust, you should deliberate on whether the 2nd trustee appointed for the property sale, should ultimately be considered suitable as your permanent co trustee of the continuing Will Trust.

Once we are in a position to exchange contracts and the sale is going ahead, I'm sure I will be coming back for more advice/questions regarding the will trust. I had not considered whether we would need to appoint a second trustee so thank you for raising that, and I will certainly give some thought as to whom may be a suitable co-trustee. Much of this is a case of not knowing what I don't know, so reading and learning as much as possible to try to be as informed as possible so that I can ask the right questions.

poseidon1

https://forums.moneysavingexpert.com/discussion/comment/82144761#Comment_82144761

Have to confess you have had quite a complex situation to deal with, once your father died whilst the house sale was underway and your mother's incapacity preventing her from occupying the 2nd trustee role for conveyancing purposes . However I believe LR has pointed the way ahead to continue the sale ( unhindered), by a process which bypasses the trust resulting from your father's death, at least for the time being.

I appreciate not losing your buyer and getting the house sale completed must be your highest priority above all else right now. Hopefully with the LR guidance you have what you need to move things along with the solicitor,

NedS

https://forums.moneysavingexpert.com/discussion/comment/82144783#Comment_82144783

Thank you.

I will keep the thread updated with progress such that it may be of benefit to other readers who may find themselves in a similar position.

If probate is granted before the chain is in a position to exchange contracts it may be irrelevant but it will at least be reassuring to know we have another route available to us if it should be required to avoid unduly delaying exchange or jeopardise the sale.

Land_Registry

Just to reiterate, as I assume you mean probate is an alternative route, that your Dad's probate is not required to deal with the property sale. Ok, his appointed executor/personal rep could for example be appointed as a trustee in the Transfer but he/she doesn't need probate to be included. In essence anyone can take on the role as the appointed trustee

I'm sure your conveyancer will be able to explain the nuances of legal and beneficial ownerships, how the form A restriction/TIC impacts and works, and how your power of attorney enables you to operate on behalf of your Mum also

RAS

There are a good many cases where probate is not needed to effect the transfer of property, but is required to deal with other assets, for example, large bank and savings accounts, stocks and shares.

Also some insurance policies demand it and there's a lot of people who only need it for fairly small NS&I accounts. Technically NS&I require it for holdings exceeding £5k, with rarely used discretion to release larger holdings.

NedS

I have a question about the will. The will is the only document that details the terms of the trust.

What happens when you apply for probate - you send the original will off and it is not returned. So I'm now effectively without an original document detailing the terms of the trust.

Should I request a solicitor to certify copies of the will before sending it off when applying for probate or can I just take my own copies as executor and a trustee?

RAS

Two things:

Make your own copies before posting off. Normally, I'd say that's enough just for the trust but given you'll be relying on them for other legal purposes, a certified copy would be useful. You just don't know what the purchaser's solicitor will demand.

Remember that the original is scanned and stored permanently on the Probate Registry web-site. So a few months after probate, anyone can obtain a copy for a small fee.

Yorkie1

If you do take your own copies. DO NOT remove any stapes or other bindings etc.

RAS

Absolutely, the removal or replacement of any bindings will result in an investigation and delay probate substantially.

So don't use a paperclip to fasten a note to the will, for example.

NedS

https://forums.moneysavingexpert.com/discussion/comment/82150451#Comment_82150451

Thanks, I got that. I know not to touch the binding of the will re probate, but good that you raised it for other readers who may not be aware how critical this is.