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  • FIRST POST
    • MrAnalogy
    • By MrAnalogy 6th Mar 18, 3:47 PM
    • 92Posts
    • 14Thanks
    MrAnalogy
    By-passing the Executor
    • #1
    • 6th Mar 18, 3:47 PM
    By-passing the Executor 6th Mar 18 at 3:47 PM
    Hi there

    Bit of a strange one that has us concerned.

    My Wife's ex-husband died a couple of days ago and the Will shows that the Executor is the solicitor who drew it up.

    If appears that the step-son in law and his Wife (both beneficiaries) have decided it would be cheaper not using a solicitor and want to use an Auditor (the husband is in Financial Services so can prepare the decedent's financial affairs)

    This couple lived with the deceased until death, with the Wife being his carer, whilst his natural daughter lives 200 miles away.

    She (and we) are concerned that as next of kin she is being by-passed with the decision making processes, and feel that although she lives at some distance she should still be involved in significant decisions, and at least have an equal say as her step-sister.

    Our main concern is that we understood that the named executor had to be informed asap, and that they had to act in that capacity unless unwilling or unable (although I think professionals are obliged to act).

    We also understood that the executor could not be dismissed unless failing in fiduciary duty, and that a new executor had to be chosen and agreed to obtain probate.

    Our concern is that the husband might be contemplating obtaining a Grant of Representation, which several parties would object to (provided they knew about it!)

    Sorry this is so long, but this is shaping up to explode into a massive family feud and I think all concerned would be better off knowing the absolute legal position and the rights and responsibilities of the Executor, next of kin and beneficiaries.

    Any thoughts or advice would be much appreciated, as at the moment we do not want to exacerbate the situation by going to a solicitor yet.

    Best Regards
Page 1
    • Yorkshireman99
    • By Yorkshireman99 6th Mar 18, 4:01 PM
    • 4,140 Posts
    • 3,382 Thanks
    Yorkshireman99
    • #2
    • 6th Mar 18, 4:01 PM
    • #2
    • 6th Mar 18, 4:01 PM
    Hi there

    Bit of a strange one that has us concerned.

    My Wife's ex-husband died a couple of days ago and the Will shows that the Executor is the solicitor who drew it up.

    If appears that the step-son in law and his Wife (both beneficiaries) have decided it would be cheaper not using a solicitor and want to use an Auditor (the husband is in Financial Services so can prepare the decedent's financial affairs)

    This couple lived with the deceased until death, with the Wife being his carer, whilst his natural daughter lives 200 miles away.

    She (and we) are concerned that as next of kin she is being by-passed with the decision making processes, and feel that although she lives at some distance she should still be involved in significant decisions, and at least have an equal say as her step-sister.

    Our main concern is that we understood that the named executor had to be informed asap, and that they had to act in that capacity unless unwilling or unable (although I think professionals are obliged to act).

    We also understood that the executor could not be dismissed unless failing in fiduciary duty, and that a new executor had to be chosen and agreed to obtain probate.

    Our concern is that the husband might be contemplating obtaining a Grant of Representation, which several parties would object to (provided they knew about it!)

    Sorry this is so long, but this is shaping up to explode into a massive family feud and I think all concerned would be better off knowing the absolute legal position and the rights and responsibilities of the Executor, next of kin and beneficiaries.

    Any thoughts or advice would be much appreciated, as at the moment we do not want to exacerbate the situation by going to a solicitor yet.

    Best Regards
    Originally posted by MrAnalogy
    An executor cannot be dismissed without good reason and they should be informed of the death ASAP. The named executor is the only one allowed to act unless they renounce excecutorship. A solicitor can choose not to renounce. Note that only a solicitor is entitled to charge for being executor. Assuming the solicitor holds the will nobody else can apply for probate or letters of administraion with the will annexed unless he gives up possession of the will. If he is made aware of the dispute he might well choose to do the job himself. That would be quite reasonable. Note that next of kin has no real legal meaning or rights.
    • MrAnalogy
    • By MrAnalogy 6th Mar 18, 4:10 PM
    • 92 Posts
    • 14 Thanks
    MrAnalogy
    • #3
    • 6th Mar 18, 4:10 PM
    • #3
    • 6th Mar 18, 4:10 PM
    Thank you for you most helpful (and swift!) reply.

    One of our concerns is that the husband will not actually make the solicitor aware of the death (which we thought would be a legal obligation) unless the cause of death/Death Certificate system automatically informs them (although how they would know I am unsure).

    I am unsure whether the husband intends to try and charge for his "services", or how the Auditor would be paid - it may be that as his Wife is a beneficiary of a percentage of the estate that he believes the fewer charges levied against it will mean more in the bequest.

    Thanks again
    Last edited by MrAnalogy; 06-03-2018 at 5:58 PM.
    • Keep pedalling
    • By Keep pedalling 6th Mar 18, 4:11 PM
    • 4,992 Posts
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    Keep pedalling
    • #4
    • 6th Mar 18, 4:11 PM
    • #4
    • 6th Mar 18, 4:11 PM
    How do you know that the solisitor has not renounced, and why do you think your wife has any say in any of this, she is certainly not his next of kin.
    • paddy's mum
    • By paddy's mum 6th Mar 18, 4:39 PM
    • 3,518 Posts
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    paddy's mum
    • #5
    • 6th Mar 18, 4:39 PM
    • #5
    • 6th Mar 18, 4:39 PM
    why do you think your wife has any say in any of this, she is certainly not his next of kin.
    Originally posted by Keep pedalling
    Well, I'd hazard a guess that the OP's wife is the mother of the 'natural' daughter and is concerned that the shenanigans which appear to be shaping up may leave her child disadvantaged, financially and emotionally.

    I suggest that it is a rare mother who would not want to be seeking advice if it protects their child's welfare and future prosperity.
    • Yorkshireman99
    • By Yorkshireman99 6th Mar 18, 4:43 PM
    • 4,140 Posts
    • 3,382 Thanks
    Yorkshireman99
    • #6
    • 6th Mar 18, 4:43 PM
    • #6
    • 6th Mar 18, 4:43 PM
    Thank you for you most helpful (and swift!) reply.

    One of our concerns is that the husband will not actually make the solicitor aware of the death (which we thought would be a legal obligation) unless the cause of death/Death Certificate system automatically informs them (although how they would know I am unsure).

    I am unsure whether the husband intends to try and charge for his "services", or how the Auditor would be paid - it may be that as his Wife is a beneficiary of a percentage of the estate that he believes the fewer charges levied against it will mean more in the bequest.

    Thanks again
    Originally posted by MrAnalogy
    Why not tell the solicitor yourself always assuming you know his identity.
    Last edited by Yorkshireman99; 06-03-2018 at 4:56 PM.
    • Keep pedalling
    • By Keep pedalling 6th Mar 18, 4:49 PM
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    Keep pedalling
    • #7
    • 6th Mar 18, 4:49 PM
    • #7
    • 6th Mar 18, 4:49 PM
    Why not tell the solicitor yourself alswys assuming you know his identity.
    Originally posted by Yorkshireman99
    As the solisitor is the executor, I would also expect they are the person holding the will. This all seems a bit odd as the deceased only dies a couple of days ago.
    • Tigsteroonie
    • By Tigsteroonie 6th Mar 18, 5:01 PM
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    Tigsteroonie
    • #8
    • 6th Mar 18, 5:01 PM
    • #8
    • 6th Mar 18, 5:01 PM
    "The will shows ..." Have you / daughter seen the original will or only a copy? As others say, it is customary for a solicitor to retain the original will when they are the only Executor.

    Presumably neither you nor daughter have a copy of the death certificate - are you local, could you obtain a copy? [Note - I have no idea how quickly you could obtain this]

    I would suggest that Daughter contact the solicitor, with a copy of the death certificate if possible but don't delay if you cannot get that, to notify the solicitor of the death and to ask whether they hold the will. At the moment, you don't even know if the solicitor is aware of the death.
    Mrs Marleyboy

    MSE: many of the benefits of a helpful family, without disadvantages like having to compete for the tv remote

    Proud Parents to an Au-some son
    • TonyMMM
    • By TonyMMM 6th Mar 18, 5:29 PM
    • 2,650 Posts
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    TonyMMM
    • #9
    • 6th Mar 18, 5:29 PM
    • #9
    • 6th Mar 18, 5:29 PM
    Presumably neither you nor daughter have a copy of the death certificate - are you local, could you obtain a copy? [Note - I have no idea how quickly you could obtain this]
    Originally posted by Tigsteroonie
    The registration office in the area the death occurred would usually supply a copy within an hour or so if you attend, or next day by post if you pay for an express service.

    But no need to have one in your hand to ring the solicitor and let them know.

    (next of kin has no real legal meaning in English law)
    • MrAnalogy
    • By MrAnalogy 6th Mar 18, 8:13 PM
    • 92 Posts
    • 14 Thanks
    MrAnalogy
    Thank you all for your replies.

    There are 3 executors named - the solicitor, the daughter and the step-daughter.

    The solicitor holds the original of the will (as he drew it up) and only a copy has been seen. The coroner is sending the Death Certificate to the step-daughter.

    I have spoken to the natural daughter (my step-daughter) and suggested that she spoke to the solicitor to make sure that he was aware.

    Am I correct in believing that the solicitor has to formally withdraw from being as executor or can the other executors just ignore him (apart from obtaining the original of the Will)?

    I appreciate that next-of-kin has no legal basis in this matter, but I assumed that as a co-executor she has the right to approve (or otherwise) actions by the other executor(s)?

    Thank you all again for all your contributions - they do help clarify the situation in my (independent) mind.

    For reference - yes, the ex-wife is interested in her daughter being treated fairly and being allowed to act as executor in any relevant decision making.

    Not quite sure what happens if the 2 executors disagree though...?

    Cheers
    • Keep pedalling
    • By Keep pedalling 6th Mar 18, 8:51 PM
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    Keep pedalling
    As there are multiple executors, any of them can step aside but no one can force them to do so and none of then can simply be ignored. As we seem to have yet another executors at potential loggerheads situation here, I would suggest that the solicitor is retained as an impartial executor, but with one or both of the other executors, doing the bulk of the work to keep costs down.

    The executors job is simply to execute the will to the letter, there should really be no decisions to make, if in doubt consult the professional executor and be guided by him/her.
    • Tigsteroonie
    • By Tigsteroonie 6th Mar 18, 8:56 PM
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    Tigsteroonie
    I would agree, I think the solicitor is going to be needed as an impartial voice.
    Mrs Marleyboy

    MSE: many of the benefits of a helpful family, without disadvantages like having to compete for the tv remote

    Proud Parents to an Au-some son
    • Yorkshireman99
    • By Yorkshireman99 6th Mar 18, 9:39 PM
    • 4,140 Posts
    • 3,382 Thanks
    Yorkshireman99
    Thank you all for your replies.

    There are 3 executors named - the solicitor, the daughter and the step-daughter.

    The solicitor holds the original of the will (as he drew it up) and only a copy has been seen. The coroner is sending the Death Certificate to the step-daughter.

    I have spoken to the natural daughter (my step-daughter) and suggested that she spoke to the solicitor to make sure that he was aware.

    Am I correct in believing that the solicitor has to formally withdraw from being as executor or can the other executors just ignore him (apart from obtaining the original of the Will)?

    I appreciate that next-of-kin has no legal basis in this matter, but I assumed that as a co-executor she has the right to approve (or otherwise) actions by the other executor(s)?

    Thank you all again for all your contributions - they do help clarify the situation in my (independent) mind.

    For reference - yes, the ex-wife is interested in her daughter being treated fairly and being allowed to act as executor in any relevant decision making.

    Not quite sure what happens if the 2 executors disagree though...?

    Cheers
    Originally posted by MrAnalogy
    The three executors have to work together. The two cannot just arbitarily ignore the other. In any case the solictor who holds the will so the others cannot do anything without their agreement. Furthermore the executors have no discretion regarding the will They have to carry out their duties strictly as per the will and have no discretion.As KP says the bestsolution is to keep the paid executor who will se thgere is no funny business. The others can help keep the costs down by doing much of the donkey work. The solictor should be asked to charge on the basis of work done and NOT a percentage of the estate value.
    Last edited by Yorkshireman99; 07-03-2018 at 11:08 AM.
    • SevenOfNine
    • By SevenOfNine 6th Mar 18, 10:26 PM
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    SevenOfNine
    They will come unstuck when completing the probate application form. Qustion 3.7 couldn't be more specific, "Name any executors who are NOT making this application with you, and explain why".

    Followed by a pick list of 5 reasons, none of which include the words "we think it will be more cost effective to leave him/her out of the legal process"!

    I wouldn't fancy their chances of probate being granted given that the original Will plus 3 copies must be sent as well. Someone is going to notice an executor is named in it who has been omitted from the form.

    If he's included on the form somehow but not even advised of the death what will they do when the oath must be sworn, only 2 people when there should be 3 is impossible to conceal!

    Of course, those are moot points as said solicitor has the original Will.
    Last edited by SevenOfNine; 06-03-2018 at 10:29 PM.
    Seen it all, done it all, can't remember most of it.
    • MrAnalogy
    • By MrAnalogy 7th Mar 18, 9:01 AM
    • 92 Posts
    • 14 Thanks
    MrAnalogy
    Once again, thank you all for your contributions - I feel I know have a fairly clear picture in my mind of the legal connotations of the situation.

    I think that the suggestion to retain the solicitor is best (but on a work done basis rather than % fee), both to act as an arbiter in case of disagreement and also to adhere to the stated wishes of the decedent that he acts as executor.

    I am presuming that to ask the solicitor not to act as executor officially would require the agreement of both of the co-executors?

    Thanks again for all your help - as stated in the beginning I fear that this will still end up as a massive family rift, but at least there would be some comfort to be had from knowing that the process was executed legally and correctly.

    Cheers all again.
    • TonyMMM
    • By TonyMMM 7th Mar 18, 10:03 AM
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    TonyMMM
    I fear that this will still end up as a massive family rift.
    Originally posted by MrAnalogy
    In which case the best option would be for the solicitor to be the sole executor, and the other two step aside.
    • MrAnalogy
    • By MrAnalogy 15th Mar 18, 10:16 PM
    • 92 Posts
    • 14 Thanks
    MrAnalogy
    Just as an update/conclusion...

    All three executors are staying active to the conclusion. The step-daughter asked the solicitor to step down - they refused - and also the natural daughter - who (after speaking to the solicitor) also declined to reserve her Executor role.
    • SevenOfNine
    • By SevenOfNine 15th Mar 18, 10:22 PM
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    SevenOfNine
    Hopefully they'll all try to work together.
    Seen it all, done it all, can't remember most of it.
    • Yorkshireman99
    • By Yorkshireman99 15th Mar 18, 10:24 PM
    • 4,140 Posts
    • 3,382 Thanks
    Yorkshireman99
    Just as an update/conclusion...

    All three executors are staying active to the conclusion. The step-daughter asked the solicitor to step down - they refused - and also the natural daughter - who (after speaking to the solicitor) also declined to reserve her Executor role.
    Originally posted by MrAnalogy
    In a way the best reult but but it will cost. Hopefully the beneficiaries will all get their money.
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