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    • userrobert
    • By userrobert 25th Sep 12, 1:06 PM
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    userrobert
    Solicitor refusing to communicate with executor
    • #1
    • 25th Sep 12, 1:06 PM
    Solicitor refusing to communicate with executor 25th Sep 12 at 1:06 PM
    I have a question which Iím hoping someone will know the answer too.

    I am the executor to my mumís will. Probate has been issued. My sister who Iíve always got on well with suddenly went to see a solicitor for advice. Since then she has asked her solicitor to not communicate with me. Every time I write to him regarding the estate he says his instructions are he is not to communicate with me direct on this matter, but only through a solicitor.

    Where do I stand here as I do not want or need to appoint a solicitor to represent the estate.

    Thanks,

    Robert
Page 2
    • daska
    • By daska 26th Sep 12, 11:15 AM
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    daska
    The funeral expenses are a liability on the estate and should be paid BEFORE the residual estate is disbursed to the beneficiaries.

    You can finish executing the Will by transferring the relevant percentages of ownership into the correct names. The cost of doing this is also a liability on the estate which needs to be settled BEFORE any disbursements to beneficiaries.

    You need to check the priority of the various bequests as to which take precedence but NO bequest takes precedence over a debt.

    If as a result of meeting the debts for which the estate is liable there is no cash left then there is no cash left! It's tough on the beneficiaries who might have been expecting something but it's not unfair, nor is it illegal. Wills aren't always updated to allow for every change in circumstances. If there isn't sufficient cash to meet the liabilities (and nothing moveable which can be sold to raise it) then the property will have to be sold to meet the debts or you could ask the beneficiaries asked to contribute to clear them before they receive any inheritance. End of! Your sister will have no choice because that is your job as exector and you do not need her permission to carry out your role. And, as you haven't registered her percentage ownership then she gets no say unless she launches a legal challenge. You really NEED to take legal advice simply to cover yourself in the event of a challenge on this!

    Or, if there is sufficient cash to meet the debts and you go ahead and finish executing the Will and transfer the ownership: Are the trustees for the part of the house which is in trust in favour of selling the property? Do you between you own the greater percentage of the property? It is possible to get an order to force the sale. But you will need to own your percentage before you can apply for that.

    Your sister cannot prevent you from carrying out your duties as exector and she isn't. She is obstructing you in your desire to purchase the house. Has it occurred to you that her obstruction might be because once she inherits it will affect her entitlement to means tested benefits? She may well have a vested interest in delaying the disbursement of the estate and sale of the house for as long as possible. In which case your only option in this instance is to work with the trustees to find a legal solution.

    And remember, memories stay with you, they are YOUR memories, they are not actually based in bricks and mortar.
    Last edited by daska; 26-09-2012 at 11:35 AM.
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    • userrobert
    • By userrobert 26th Sep 12, 11:21 AM
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    userrobert
    Thinking about this, is it possible your sister doesn't want to sell her % of the house to you or anyone ?

    The estate contains 3/8th's of a house. While you may want to buy your sister's share (ignoring whether valuation is correct or not) I don't see why you assume you can force her to realise her % at £x. Normally in a house/beneficiary split you get some who want the cash so there's the option of an open market sale vs negotiation between beneficiaries of 'buying out' those who want to be bought out. Your late mother's house is already 5/8th's owned by a trust, so it can't be sold.

    At this point I'm stuck. in theory you (as a beneficiary) could force the executor (also you) to realise your % value. But my point is, your sister, in this precise situation, is not doing that - she's sought legal advice to prevent her % being disposed of ie sold. I don't see how you can dispose of it without her consent. The possibilities are a) she wants to retain her % or b) she wants a better price and if b) it's not as cut and dried as you think.

    Edit : Just thought, if the above is correct, the solicitor may be obliquely putting you on notice that the executor (you) is not in a legal position to dispose (sell) his client's inheritance (the %) and that the executor (you) should take legal advice on that position before proceeding.
    Originally posted by Somerset

    Thanks for your feedback

    My sister has said she wants to sell her percentage of the house and has never once disagreed about the value the estate agents put on it. I know my sister doesnít like the idea of me buying the house, mainly because of personal issues. Those being mum died here.
    • Mojisola
    • By Mojisola 26th Sep 12, 11:24 AM
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    Mojisola
    My sister has said she wants to sell her percentage of the house and has never once disagreed about the value the estate agents put on it. I know my sister doesnít like the idea of me buying the house, mainly because of personal issues. Those being mum died here.
    Originally posted by userrobert
    Then the situation is really strange.

    I think the only way out is to see a solicitor to get a view on what's happening and to contact your sister's solicitor. Remember, as executor, you can pay any solicitor's bills from the estate.
    • daska
    • By daska 26th Sep 12, 11:30 AM
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    daska
    Thanks for your feedback

    My sister has said she wants to sell her percentage of the house and has never once disagreed about the value the estate agents put on it. I know my sister doesn’t like the idea of me buying the house, mainly because of personal issues. Those being mum died here.
    Originally posted by userrobert
    Which appears irrational. Therefore you are unlikely to be able to bring her round. So you need to find a legal solution.

    Whichever way you slice it I think you NEED to take legal advice.

    N.B. I've edited my previous post to clarify, expand on bits of it
    Last edited by daska; 26-09-2012 at 11:33 AM.
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    • userrobert
    • By userrobert 26th Sep 12, 11:37 AM
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    userrobert
    The funeral expenses are a liability on the estate and should be paid BEFORE the residual estate is disbursed to the beneficiaries.

    You can finish executing the Will by transferring the relevant percentages of ownership into the correct names. The cost of doing this is also a liability on the estate which needs to be settled BEFORE any disbursements to beneficiaries.

    You need to check the priority of the various bequests as to which take precedence but NO bequest takes precedence over a debt.

    If as a result of meeting the debts for which the estate is liable there is no cash left then there is no cash left! It's tough on the beneficiaries who might have been expecting something but it's not unfair, nor is it illegal. Wills aren't always updated to allow for every change in circumstances. If there isn't sufficient cash to meet the liabilities (and nothing moveable which can be sold to raise it) then the property will have to be sold to meet the debts or you could ask the beneficiaries asked to contribute to clear them before they receive any inheritance. End of! Your sister will have no choice because that is your job as exector and you do not need her permission to carry out your role. And, as you haven't registered her percentage ownership then she gets no say unless she launches a legal challenge. You really NEED to take legal advice simply to cover yourself in the event of a challenge on this!

    Or, if there is sufficient cash to meet the debts and you go ahead and finish executing the Will and transfer the ownership: Are the trustees for the part of the house which is in trust in favour of selling the property? Do you between you own the greater percentage of the property? It is possible to get an order to force the sale. But you will need to own your percentage before you can apply for that.

    Your sister cannot prevent you from carrying out your duties as exector and she isn't. She is obstructing you in your desire to purchase the house. Has it occurred to you that her obstruction might be because once she inherits it will affect her entitlement to means tested benefits? She may well have a vested interest in delaying the disbursement of the estate and sale of the house for as long as possible. In which case your only option in this instance is to work with the trustees to find a legal solution.

    And remember, memories stay with you, they are YOUR memories, they are not actually based in bricks and mortar.
    Originally posted by daska
    There is insufficient funds in mumís account to pay both the beneficiaries and the funeral which is why I paid for the funeral myself. My thoughts were half of the funeral costs would eventually be deducted from the money my sister got from her percentage of the house, given she wants to sell if for cash, unlike myself who wants to keep my percentage for the bank as deposit to get the mortgage to buy it.

    Yes the trustees want to sell. It was the trustees who approached me with an offer to buy the property because I spoke to them about buying them out years ago. Since then we have had the place valued independently and I agreed with their offer because it was exactly the same as their offer.

    The trustees own the biggest majority with 5/8. Between myself and the trustees we own 7/8 of the property. I was informed there was a possibility to force a sale provided the house was put up at public auction and my sister informed of it. It is not really a route I want to take.

    As it stands her solicitor is ignoring my letters where I have asked him what his intentions are regarding the estate. To me this is him obstructing my duties as I am limited if she is intending to contest the will.
    • daska
    • By daska 26th Sep 12, 11:39 AM
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    daska
    No, he's not, he's obstructing the sale. Unless the execution of the Will requires the sale of the property, either explicitly or as a result of settling the liabilities and dealing with the bequests in order of importance, then the sale does not form part of your duties as executor. You have no rights as a beneficiary until the executor has finished distributing the estate.

    I realise that you are both executor and a beneficiary but you must draw a distinction between the two. You must not allow your desires as a beneficiary to compromise how you execute the Will or you could get yourself into very hot water.

    I'm really sorry to say this but on the basis of your last post I think you are out of your depth and need to take advice.
    Last edited by daska; 26-09-2012 at 11:47 AM.
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    • Mojisola
    • By Mojisola 26th Sep 12, 11:43 AM
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    Mojisola
    There is insufficient funds in mum’s account to pay both the beneficiaries and the funeral which is why I paid for the funeral myself.
    Originally posted by userrobert
    You will find yourself left with the cost of the funeral.

    The funeral costs and any debts should be paid before any beneficiaries are paid.

    If there is no money left, you will also be paying for any legal advice you take.

    You can't deduct anything from your sister's share of the house because she was left part of the property, not the money after it was sold.

    You really need to finish sorting out the will and keep the sale of the house completely separate.
    • userrobert
    • By userrobert 26th Sep 12, 11:46 AM
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    userrobert
    Which appears irrational. Therefore you are unlikely to be able to bring her round. So you need to find a legal solution.

    Whichever way you slice it I think you NEED to take legal advice.

    N.B. I've edited my previous post to clarify, expand on bits of it
    Originally posted by daska
    Thanks.

    Yes that does make sense. My next step is to see a solicitor to see what they say regarding this.

    I originally approached my sister and made an offer for her to keep her percentage in the house, for it then to be released slowly each year so as not to effect her benefit. She refused saying she wanted all the money and would stop her benefit until she used all the money up! I was shocked she said this, but then again she is a money waster and simply wants to squander it. Mum knew this and was thinking of putting her money in trust to prevent her doing so. Unfortunately mum never got around to doing it.Then again it's her money and she can do with it as she wishes.
    • userrobert
    • By userrobert 26th Sep 12, 11:50 AM
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    userrobert
    You will find yourself left with the cost of the funeral.

    The funeral costs and any debts should be paid before any beneficiaries are paid.

    If there is no money left, you will also be paying for any legal advice you take.

    You can't deduct anything from your sister's share of the house because she was left part of the property, not the money after it was sold.

    You really need to finish sorting out the will and keep the sale of the house completely separate.
    Originally posted by Mojisola

    Ok I didnít realise that. Thanks
    • daska
    • By daska 26th Sep 12, 11:52 AM
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    daska
    Thanks.

    Yes that does make sense. My next step is to see a solicitor to see what they say regarding this.

    I originally approached my sister and made an offer for her to keep her percentage in the house, for it then to be released slowly each year so as not to effect her benefit. She refused saying she wanted all the money and would stop her benefit until she used all the money up! I was shocked she said this, but then again she is a money waster and simply wants to squander it. Mum knew this and was thinking of putting her money in trust to prevent her doing so. Unfortunately mum never got around to doing it.Then again it's her money and she can do with it as she wishes.
    Originally posted by userrobert
    So it may be greed as well/instead of being irrational. Whatever you think she may in her heart of hearts believe that she'd get more money if the house went on the open market.
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    • daska
    • By daska 26th Sep 12, 11:57 AM
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    daska
    Just going back a step as well, it's probably worth spelling this out:

    You must not claim legal expenses from the estate unless they are specifically related to executing the estate. So consulting a solicitor to deal with your sister's refusal to sell would not be permitted as this is a private matter.

    BUT...

    You are allowed to consult a solicitor to confirm that you are taking the correct course of action as an executor, or to set up trusts, transfer ownership etc.
    Eat food. Not too much. Mostly plants - Michael Pollan
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    • Somerset
    • By Somerset 26th Sep 12, 12:00 PM
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    Somerset
    Thanks for your feedback

    My sister has said she wants to sell her percentage of the house and has never once disagreed about the value the estate agents put on it. I know my sister doesnít like the idea of me buying the house, mainly because of personal issues. Those being mum died here.
    Originally posted by userrobert
    In which case, if this were me, I'd do a two-stage.

    1) You have probate. Deal with the estate in compliance with the will - all the usual, cash in, cash out (incl funeral exps), prepare a set of accounts (in case) documenting everything. Transfer the property (Land Reg) in the percentages specified by the will - cost will be bourne by the estate per above. Distribute any residue per the terms of the will. Provide the accounts & copy land reg & cheque (if any) to sister, copy in her solicitor. At that point the estate has been correctly administered.

    2) Completely separate transaction - negotiate with sister about buying her share of the house.

    You might be correct, your sister doesn't want you to have it. But that's her right, she doesn't have to sell to you. If you can buy it, you will incur additional costs (you were trying to avoid) but that's life. It's messy - there will be an empty ( I assume ) house, with three part owner's, which will need on-going money spent to maintain, repair, council tax etc etc. But I think you need to deal with the house problem, as a separate issue after the estate has been properly distributed. You're trying to tie up too many loose ends in one 'sort out' - if everyone were on the same page it would be possible, but your sister's reaction has made it impossible in this case.
    • daska
    • By daska 26th Sep 12, 12:12 PM
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    daska
    In which case, if this were me, I'd do a two-stage.

    1) You have probate. Deal with the estate in compliance with the will - all the usual, cash in, cash out (incl funeral exps), prepare a set of accounts (in case) documenting everything. Transfer the property (Land Reg) in the percentages specified by the will - cost will be bourne by the estate per above. Distribute any residue per the terms of the will. Provide the accounts & copy land reg & cheque (if any) to sister, copy in her solicitor. At that point the estate has been correctly administered.

    2) Completely separate transaction - negotiate with sister about buying her share of the house.

    You might be correct, your sister doesn't want you to have it. But that's her right, she doesn't have to sell to you. If you can buy it, you will incur additional costs (you were trying to avoid) but that's life. It's messy - there will be an empty ( I assume ) house, with three part owner's, which will need on-going money spent to maintain, repair, council tax etc etc. But I think you need to deal with the house problem, as a separate issue after the estate has been properly distributed. You're trying to tie up too many loose ends in one 'sort out' - if everyone were on the same page it would be possible, but your sister's reaction has made it impossible in this case.
    Originally posted by Somerset
    Actually that's a good point, does the Will make any provision for upkeep? If not then you probably ought to consider this, it might take a long time to dispose of the property and the costs of insurance etc will need to be born by the owners. You probably ought to ask the trustees to join with you on taking legal advice on forcing the sale asap.

    The other thing that springs to mind is that while in your role of executor you need to maximise the value of the estate for the beneficiaries, once the estate has been disbursed this is no longer the case, at least for you, the trustees obviously still have a legal duty to take best care. You might be able to use that as a bargaining point - if you don't agree to sell to me then the trustees and I can't afford the upkeep so I will have to force a sale and put it up for a quick auction... IF her motive is greed she may see sense. (I wonder if there's anything to stop you bidding at the auction? LOL)
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    • Somerset
    • By Somerset 26th Sep 12, 12:23 PM
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    Somerset
    You might be able to use that as a bargaining point - if you don't agree to sell to me then the trustees and I can't afford the upkeep so I will have to force a sale and put it up for a quick auction... IF her motive is greed she may see sense. (I wonder if there's anything to stop you bidding at the auction? LOL)
    Originally posted by daska
    At least it's dealing with one problem at a time. The trouble is whilst a sale can be forced (and it def can) it has to be done legally, which will involve the parties wanting to sell ( trustee's and OP ) shelling out for legal fee's. And the OP could indeed be the buyer. It's just another problem, legal fight but it's doable.
    • Mojisola
    • By Mojisola 26th Sep 12, 12:35 PM
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    Mojisola
    I originally approached my sister and made an offer for her to keep her percentage in the house, for it then to be released slowly each year so as not to effect her benefit. She refused saying she wanted all the money and would stop her benefit until she used all the money up!

    I was shocked she said this, but then again she is a money waster and simply wants to squander it.
    Originally posted by userrobert
    You could read up on "deprivation of capital" and suggest your sister makes sure she understands it before she squanders her inheritance.
    • daska
    • By daska 26th Sep 12, 1:09 PM
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    daska
    So OP, you need an action plan:

    I'll start and if I miss anything out then I'm sure Mojisola etc will plug the gaps. But please bear in mind that I at least am not a lawyer, my knowlege comes only from having to deal with a couple of tricky estates where I wasn't even executor, just helped! And here's a useful link for you about the precedence of bequests/liabilities.

    1. Sort out receipts for the funeral expenses. You have probate so you can claim these now, you don't have to wait for the estate to be disbursed, but I'm going to suggest that you don't until a the complete picture is confirmed.

    2. Do the sums, can the estate meet the funeral expenses and all the other debts. Is there a bit of cash for legal advice? Are there any moveables and can they be sold if necessary to cover any of the above.

    3. Speak with the trustees and agree what areas you need legal advice on (meeting debts, maintenance costs etc)

    4. Get legal advice.

    5. Act on legal advice.


    Just a thought, from what you've said you've been left a higher percentage of the property than your sister has, could some of this be sour grapes, is there a possibility that she is trying to establish how she goes about getting a larger share?
    Last edited by daska; 26-09-2012 at 1:11 PM.
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    • Mojisola
    • By Mojisola 26th Sep 12, 1:19 PM
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    Mojisola
    There is insufficient funds in mum’s account to pay both the beneficiaries and the funeral which is why I paid for the funeral myself.
    Originally posted by userrobert
    It's not clear from this whether you have already distributed the cash to beneficiaries.

    If a will leaves, say, 50k in cash and there are bequests of 25k to two people, they will not receive the full amount. The executor can only pay out what is left after the costs of the funeral, any debts and any legal expenses are paid.
    • rpc
    • By rpc 26th Sep 12, 2:24 PM
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    rpc
    You can't deduct anything from your sister's share of the house because she was left part of the property, not the money after it was sold.
    Originally posted by Mojisola
    That's not entirely correct. If the cash in the estate does not cover the liabilities, the house would probably have to be sold. Liabilities (funeral, solicitors fees, IHT) come before any bequests. It sounds as though this isn't far from OP's situation? They do say that if the estate paid the funeral costs there would be no money for beneficiaries.

    A will could leave more to beneficiaries than there actually is in the will, in which case the will could not be followed to the letter. e.g. the house could be left "free of inheritance tax" to someone without sufficient other assets to cover the inheritance tax. In that case either the house is sold or the beneficiaries pay the tax. In any scenario like this, I would seek legal advice.

    However, OP needs to ensure that the sale of the house and the execution of the will are not confused. It could be argued that solicitors fees associated with the sale of the property are not reasonably incurred by OP as an executor and so cannot be taken from the estate.
    • rpc
    • By rpc 26th Sep 12, 2:28 PM
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    rpc
    If a will leaves, say, 50k in cash and there are bequests of 25k to two people, they will not receive the full amount. The executor can only pay out what is left after the costs of the funeral, any debts and any legal expenses are paid.
    Originally posted by Mojisola
    If there is 50k and a house and the will leaves house to X, 25k to Y and 25k to Z then X, Y and Z should all suffer any shortfall. That sounds more like OP's scenario.

    Any beneficiary with a residual bequest gets hit first but, unless the will says otherwise, all beneficiaries with specific bequests should get treated equally. You need to make sure you do that all above board, so I would get the advice of a solicitor just to confirm your approach.
    • daska
    • By daska 26th Sep 12, 2:37 PM
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    daska
    If there is 50k and a house and the will leaves house to X, 25k to Y and 25k to Z then X, Y and Z should all suffer any shortfall. That sounds more like OP's scenario.

    Any beneficiary with a residual bequest gets hit first but, unless the will says otherwise, all beneficiaries with specific bequests should get treated equally. You need to make sure you do that all above board, so I would get the advice of a solicitor just to confirm your approach.
    Originally posted by rpc
    That might seem fair but my understanding was that the rules follow this order:
    funeral - in full
    debts - in full
    other liabilities (e.g. executors legal expenses) - in full
    property - absolutely unless it has to be sold to meet the above
    cash - reduced proportionately
    residual
    Last edited by daska; 26-09-2012 at 2:39 PM.
    Eat food. Not too much. Mostly plants - Michael Pollan
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    Low carb, low oxalate Primal + dairy
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