Gazette Advice

LinBWales · 8 February 2018 at 9:53PM

I hope someone is able to advise. My mum died last year and before she died my brother moved into her flat where he still lives. He has some physical and mental health issues so I would feel really bad about evicting him. However about 3/4 of the value of the flat is mortgaged to an equity release company and so far I have paid for the funeral, probate and some other bills. He is now paying his own utility bills but I cannot get the service charge bill transferred to his name so I am having to pay that. The equity release company will step in if the flat is not sold within 12 months so I would like to get it sorted before then.

I am the sole executor and anything left over from the estate is to be divided between us. But because he is claiming he originally bought the flat I have put a notice in the Gazette. He cannot produce any evidence that he did buy the flat and all the documentation I have supports that my parents bought it. Although there was a mortgage against it that he took out which he was then unable to pay which forced my parents to take out the equity release mortgage which I didnt know about at the time.

So my question is this - having put the notice in the Gazette, what should I do about his unsubstantiated claims? I have asked him for evidence of his claim, but have also been in touch with the solicitor who handled the original purchase 12 years ago, and am waiting for them to get back to me.

We don't get on and the last time we were in touch he was ranting about 'discovery' and I have no idea what he means by that.

I am loath to get solicitors involved as there is already going to be very little left over once debts are paid. So any helpful advice would be welcomed.
Thank you in advance

Yorkshireman99 · 8 February 2018 at 10:00PM

LinBWales wrote: »

I hope someone is able to advise. My mum died last year and before she died my brother moved into her flat where he still lives. He has some physical and mental health issues so I would feel really bad about evicting him. However about 3/4 of the value of the flat is mortgaged to an equity release company and so far I have paid for the funeral, probate and some other bills. He is now paying his own utility bills but I cannot get the service charge bill transferred to his name so I am having to pay that. The equity release company will step in if the flat is not sold within 12 months so I would like to get it sorted before then.

I am the sole executor and anything left over from the estate is to be divided between us. But because he is claiming he originally bought the flat I have put a notice in the Gazette. He cannot produce any evidence that he did buy the flat and all the documentation I have supports that my parents bought it. Although there was a mortgage against it that he took out which he was then unable to pay which forced my parents to take out the equity release mortgage which I didnt know about at the time.

So my question is this - having put the notice in the Gazette, what should I do about his unsubstantiated claims? I have asked him for evidence of his claim, but have also been in touch with the solicitor who handled the original purchase 12 years ago, and am waiting for them to get back to me.

We don't get on and the last time we were in touch he was ranting about 'discovery' and I have no idea what he means by that.

I am loath to get solicitors involved as there is already going to be very little left over once debts are paid. So any helpful advice would be welcomed.
Thank you in advance

You have little choice but to involve a solicitor. If trhe equity realease company get invlved the costs are likely to be much higher.

LinBWales · 8 February 2018 at 10:57PM

Thank you, the main question is regarding the Gazette. Is there any format in which claims should be presented to be regarded as legitimate, i.e. do they have to be substantiated with any evidence?

I also have a secondary question about my personal liability. I own my own home, my brother has no savings and no income. I am the sole executor. Could the Equity Release Mortgage company pursue me personally if there was a shortfall in the amount I accepted for the flat against what they are owed by the estate? Mum had no savings, only debts. I really need to sell the flat for what I can get for it, as I cannot afford the next lot of service charges which are due every six months. I was thinking of selling at auction, having already dropped the price of the flat twice.

Yorkshireman99 · 8 February 2018 at 11:01PM

LinBWales wrote: »

Thank you, the main question is regarding the Gazette. Is there any format in which claims should be presented to be regarded as legitimate, i.e. do they have to be substantiated with any evidence?

I also have a secondary question about my personal liability. I own my own home, my brother has no savings and no income. I am the sole executor. Could the Equity Release Mortgage company pursue me personally if there was a shortfall in the amount I accepted for the flat against what they are owed by the estate? Mum had no savings, only debts. I really need to sell the flat for what I can get for it, as I cannot afford the next lot of service charges which are due every six months. I was thinking of selling at auction, having already dropped the price of the flat twice.

One crucial thing is to establish if the estate is solvent. If not then you must do absolutely nothing otherwise you could be liable for debts.

LinBWales · 8 February 2018 at 11:29PM

Thank you Yorkshireman99. I have already applied for probate and got it, but am having second thoughts as I am finding the process of dealing with my brother very draining. However I believe that the estate is solvent - similar flats have recently sold for £150,000 while the equity release mortgage will cost about £122,000 to redeem. There is about £13,000 owed in debts, funeral expenses, estate agents and solicitors fees, plus a specific request from mum that £4,000 is repaid to me which was a loan I made in 2015 to her. The remainder is what would be split equally between us, not a fortune but I would like to recoup the funeral costs and my loan at the very least.
Having already obtained probate, what process is there to stop it if I want to? And if my brother then applied for probate, would he still have to honour mum's will? What recourse is there against someone who is an executor who doesn't honour a will? I am asking as he thinks he is entitled to all of the remaining equity in the flat.

Yorkshireman99 · 8 February 2018 at 11:42PM

LinBWales wrote: »

Thank you Yorkshireman99. I have already applied for probate and got it, but am having second thoughts as I am finding the process of dealing with my brother very draining. However I believe that the estate is solvent - similar flats have recently sold for £150,000 while the equity release mortgage will cost about £122,000 to redeem. There is about £13,000 owed in debts, funeral expenses, estate agents and solicitors fees, plus a specific request from mum that £4,000 is repaid to me which was a loan I made in 2015 to her. The remainder is what would be split equally between us, not a fortune but I would like to recoup the funeral costs and my loan at the very least.
Having already obtained probate, what process is there to stop it if I want to? And if my brother then applied for probate, would he still have to honour mum's will? What recourse is there against someone who is an executor who doesn't honour a will? I am asking as he thinks he is entitled to all of the remaining equity in the flat.

If you already have probate then it is far too late to walk away. As you are the executor and have Probate you have the whip hand. The debts have to be paid first but any surplus from the sales distributed according to the will you really must consult a solicitor for advice about the gazette notice etc. If your brother wants to challenge it he will have do so like any other ceditor.

Not_a_clue · 9 February 2018 at 12:33AM

Don't forget to reclaim for any service charges you pay. Really your brother should be paying the estate rent if he is a tenant though it might be as well that you aren't charging rent as otherwise you could create a tenancy.

You will never manage to sell the property while your brother lives there and claims part ownership. Any buyer would want vacant possession (or it is unmortgagable except as a buy to let). Any private buyers solicitor would require your brother to disclaim any ownership rights and to guarantee to move out.

I think you need legal advice to get him out first. Possibly a bad idea, but the equity release people have a secured loan on the property for around 5/6ths of the property value already and would have a vested interest in advising, though might well add further charges.

Unless your brother moves out soon I think the equity release company will end up taking over anyway. I suspect it is unlikely then that there will be any money left over for unsecured debts, apart from possibly the funeral. Seek legal advice on whether you have to inform the company anyway of the position as you risk being personally liable if you maladminister the estate. The company may hold documents that could provide support in denying your brother's claim on the house as it's highly unlikely they would have carried out equity release with a young resident co-owner.

Sorry to be such a downer on this, and it is purely my own views as I have no legal background.

konark · 9 February 2018 at 4:09AM

I don't think the Gazette question is the main one you should be concentrating on. The Gazette only covers an executor against a distribution before creditors have been paid. In your case you know the creditors , and your problem seems to be a brother who thinks a flat is his. Is his name on the LR register? My guess is no because the equity release people only deal with people over 60. Also they never want more than 100% of property value, but if you attempt to flog it off cheap they may not allow it.. The debt to the company is mounting daily and if there is any delay the estate could slip from being worth a few grand to being insolvent.

getmore4less · 9 February 2018 at 4:53AM

How did the brother get a mortgage on the property?

It is possible if not an owner but not easy and requires unusual paperwork that not many lenders will do.

BrassicWoman · 9 February 2018 at 7:33AM

Personally I'd take the hit on funeral costs and loan and inform the equity company that the estate is insolvent, bro won't move out, and they should begin proceedings. Then let him handle it as he will. Do the paperwork to tidy up after they have repossessed and sold.

Margot123 · 9 February 2018 at 9:34AM

Have you got a precise amount that is repayable to the equity release company ie a final statement?

We very much underestimated in similar circumstances, forgetting about the interest 'snowballing'. We guessed it was about £45k when it fact it was nearer £70k. That was on a loan of £22k after 13 years.

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