My brother won't go to probate

steves22

My brother is executor of our father's estate. In my father's will he left his share of the house to my brother (which is half the property). I own the other half which my mother left me some years back. Neither of us live there. Sounds strange I know.

The problem that I have is that my brother does not want to take the estate to probate for the time being, largely because he will have to pay half the Council Tax. I have been landed with paying the Council Tax (less 10% discount for an unoccupied house) as I am the only one now who is on the Land Register. He won't even clear the house which would give me a 6 month Council Tax break. I cannot clear the house as it part of the estate and hence run by the executor. Needless to say, I am not that close to my brother! The house probably would be difficult to sell at present and I think he believes that if he holds on then prices will recover. Not a feeling that I share.

So the question I have is , can I force him to take the property to Probate so that he gets landed with half the Council Tax. Also, could I simply sell the property without his agreement as he is not on the Land Register.

Any ideas welcome.

JoJoArmani

Flippity, flip...

I wish I could help you.

Can't you approach your father solicitor/your solicitor for advice?

I take it there is only one executor?

Doesn't make sense that a will can be simply ignored...

have you tried one of the other forums on here?... I'm not sure this is the best one to help you.

All the best though - sorry for your loss xx

scutter

It is the executers responsibility to make sure that the will is adhered to and that all debts are paid. You will be within your rights to claim the money you are paying for the council tax back from the sale of the property before the money is divided.

What i would suggest is get a valuation on the property and then ask your brother if he wants to buy you out.

Failing that speak to the CAB, if he is not fulfilling his duty as executer then you may have to take him to court.

sdooley

You can apply to the probate registry for an order passing over your brother as executor and as administrator (provided he has not 'intermeddled' - i.e. bought and sold estate property). As a residuary beneficiary you would be entitle to take out a 'grant of letters of administration with the will annexed'.

Although it's not the cheapest option, seeking advice from a member of the society of trust and estate practitioners (a solicitor typically - I am a student member only) would probably be your best bet for now - a few hundred pounds of advice now could save thousands later.

Alternatively, if you appoint a co-trustee with you on the register of the property (you say your father's name is not on the register anymore - not sure why not?) you may be able to sell without going through probate, and you would then hold half the money on trust for your brother when he eventually gets a grant of probate. Or you and the new trustee could let the property out - which would do more for its long-term value than leaving it vulnerable to burglars, arsonists, etc while providing an income to meet the bills.

IS THE PROPERTY PROPERLY INSURED AS AN UNOCCUPIED PROPERTY?

Richard_Webster

The last post makes the point about applying as administrator with the will annexed.

However I do not really see why the Land Registry entries are considered so crucial.

Plenty of monthly tenants pay Council Tax and their names are not registered at the Registry so I don't see what it has to do with anything...

Also if your father jointly owned the proeprty with you then surely his name is still there at the Land Registry and you point to the fact that he has died and you only own half the house to justify only paying half and the other half being paid by your brother.

steves22

Thanks Richard, but interestingly enough, the Local Authority seem to take the entries in the Land Registry as gospel. They are at least writing to the Executor now but have said that I am liable. It is their easiest route to get their Council Tax payment and their standard procedure. The Land Register has my father's and my name on it but with the passing of my father they can only 'pin' the tax on me. The chap at the council said that case has not occurred before and suggested that I speak to my local councillor!

brightonman123

can you aslso add brother to council tax account? that might focus his mind, especially when they come a knocking..

minigirl

Hi Steves22

I can't comment on the 'Probate' side of this matter but can help on the selling side as I work in Conveyancing. As the property is in your name and your father's name and your father left a will leaving his share to another person you are probably registered at the Land Registry as holding the property as 'tenants-in-common' which means on the death of one of the owners Probate would have to be produced in order to sell.

You would only be able to sell the property without your brother's consent if you held the property as 'joint tenants' which means that upon the death of one owner the property automatically transfers to the other but this wouldn't (or shouldn't) be the case as this would contradict the will.

Hope this helps.

nrsql

>> It is their easiest route to get their Council Tax payment.
That's probably the crux of the matter. They will hold you liable unless they have someone else - why should they do any work? You might be able to defend a court case but it would be a lot of hassle.

I would have thought that half of the house is part of the estate so the estate should be liable. I suspect there's no way you can get the executor to pay out at the moment but you shuold get reimbersed when everything is settled. You would have to register it as a debt with the executor though.
I don't know if that's right but sounds sensible.


Oops
If the deceased person lived alone and owned the property, their estate will normally be exempt from paying Council Tax until the date that Probate or Letters of Administration are granted. From that date, provided that the property remains unoccupied, an exemption will apply for a maximum period of 6 months. After that, the estate will be responsible for paying the Council Tax if the property remains empty.

Sounds like the estate doesn't get charged so maybe the options are you pay the full amount or there's an exemption of half.

Mary_Hartnell

Is there some sort of fine for not doing the tax return to the Capital Taxes office on time, as that is the first step in gaining probate these days?

Perhaps you brother does not realise; so you could telephone them and ask them to send all the bumph to his home address. That would put another organisation with a bottomless pocket on his case.

As you are likely to be liable for Capital Gains Tax on your half; you are going to need your brother's cooperation when it comes to arguing about valuations. Unfortunately he might be able to argue that his half is going DOWN in value since the death. He will still need to provide a valuation as at date of death for CGT purposes, if he does not get a move on and sell it.
Presumably, there is no suggestion of InHeritance Tax actually being payable on dad's estate?

There are some big IHT avoidance threads running on this forum, try sending some of their "experts" a Private Message (PM) and asking them to join us on this thread.

steves22

Thanks for the info. The value of the estate falls below the IHT threshold , if it did not then my brother would have up to 6 months to pay any tax pending probate. So this is not the case. The probate office advise me that there is no time limit on submitting probate and that they have cases where this has taken 5 years.
Re my liability for CGT, I am under the impression that this is only payable when the house is (eventually) sold , so I would not need his input here as the valuation would be the sale value.

Thanks , Steves22