Probate Question – |Uncoperative Executors.
Your tips are very useful. Perhaps you could include something to cover the legal aspects of the following current scenario with uncooperative executors ……….(TPD: These situations where family conflict appears inevitable with uncooperative family members as executors who have no clear idea of what is allowed and what is potentially criminal – it is even worse when there has been a Power of Attorney in place and the attorney has not been fully aware of what they are allowed to do. The rest of the letter has been amended so that the family involved cannot be identified!)
I currently find myself in a bizarre situation following the death of my Mother in September, where I am seriously considering putting a Caveat in place to stop Probate.
There are four children all well over 18. Two of which do not get on with the other two!
Prior to her death in July 2011 an LPA was put in place giving power to a brother and sister who live near my mother. Myself and another sister who do not get on with them and live further away were excluded without consultation. Brother also has a signatory ability on my Mothers bank account………Fine, I understood the need at the time.
Again without consultation they immediately put Mothers house up for sale and disposed of the contents prior to her death. Some of the contents were mine as I was born 20 years after the other three who are all now aged late 70’s. I was not told this was happening or given a chance to take my stuff. By chance because I was suspicious I had a look on Rightmove and discovered what had happened!…………………..BUT surely the contents if they were sold form part of the value of the Estate? (Yes they do – or at least the cash representing their value if they had been sold.)
She died at home and I heard 3rd hand the following day as did my sister.
Since her death I contacted my brother and asked about her Will. Firstly I was told all 4 of us were equal beneficiaries. 24 hours later having pushed for more information I was eventually told that we were also all executors. Since then I have repeatedly asked for a copy of the Will as has my other sister, and so far we have been refused. I know we have a legal right to see the Will. He refuses to speak to my sister. (Yes you do as an executor. I feel a Caveat coming on!)
I asked about the funeral arrangements and was told she would be cremated at Brighton. Mother had stated many times that she wanted her ashes buried with my Father in Carlisle. My brother refused to do that so I said that I would take care of it if they wouldn’t. I started to make the arrangements and suddenly 2 days later he decided that he was doing it. Fine! (Funeral arrangements are technically the responsibility and decision of all executors.)
I rang my sister to ask how much it was costing. He let it slip that he and his wife together with my sister and her husband were going so the cost would include flights, Hotel rooms, car hire and airport transfers. I asked how he was paying and he said he’d pay with Mothers bank account! I asked if he had told the Bank that she was dead and given them a copy of the death certificate…..reply “NO”. I then told him that if he has withdrawn money since her death and not told the Bank then that is Fraud. Again there was no consultation with two Executors/Beneficiaries. (An attorneys rights die with the person whose Power of Attorney it was – executors have the right to reasonable expenses for carrying out their duties, but the bank will not pay for anything other than the funeral and then only if they agree in advance and pay the undertaker direct. As you say, such an action would not be legal. I don’t think attending the funeral really counts as a duty and certainly not paying for anyone else to attend unless specifically authorised by the Will.)
I told him I didn’t know if he could claim expenses back from the estate or not. But why was I prepared to bury her ashes in Carlisle at my expense and now he expects my sister and I to pay for 4 people to travel to Carlisle because he thinks he can do what he wants?
WHAT I HAVE DONE SO FAR TO COUNTER THE ABOVE :-
1) I’ve contacted the Registrar and ordered three copies of the death certificate. As soon as they arrive today/tomorrow I will be handing one to the Bank to stop my mother’s account.
2) I’ve done a standing search for the Probate and Will so that when they become public documents I can compare the two Wills to make sure they have not been switched. Should I ever get sight of the Will prior to the Probate application? (You could make it clear to the Registrar that you would not stand down as executor and have not been asked too if the solicitor is unable to resolve the situation.)
3) I have located the Solicitor they are intending to use for the administration of my Mothers Estate. The same one that did the LPA. I have spoken to the Solicitor and raised my concerns as per the above info and told him I had more than sufficient grounds to put a Caveat in place. So what is he going to do about it? He told me to ring him on Monday. He also advised I contact the Registrar ref the Bank…….Ha…Already done! (The solicitor should sort them out, and make them behave properly, at risk of losing the instructions where uncooperative executors won’t cooperate no matter how clear it is made to them that they are in the wrong.)
4) I have located the company that wrote the Will. They will give me a copy of their copy on receipt of the Death Certificate providing that I am an Executor. So I will request that.
5) I have informed the Estate Agent that the house will be subject to Probate. They had not been told either! (You might want to do a Land Registry Search to check that the house is still in your mother’s name! It is not unknown for attorneys to transfer a property for the wrong reasons – though there can be sound reasons too.)
6) The Caveat application is ready to be posted.
7) I’ve looked into the cost of employing a Solicitor…..BUT £200 – £300 + Vat for an initial consultation to probably tell me the above points 1) to 6) is too much IMHO. I expect the cost beyond that would be unthinkable and more than any financial gain by doing so. (Our charges for this would probably be £60, including VAT, clearly more if we have to do any of the work, though a stiff experts letter will often stop reckless or uncooperative executors.)
Uncooperative Executors Probate Answer – in broad terms only!
Sounds like you might need to consider involving the police, though they will probably be too busy and consider it a Civil matter, and refer you to a solicitor (us, hopefully!).
Your stuff has been stolen even if inadvertently. and they seem to be acting illegally in using the bank account after she is dead. Sending the Death Certificate in to the Bank will at least stop that.
The bank would no doubt be willing to stump up for the funeral in the proper way, if her bank account has sufficient in it. But I would be surprised if they would willingly pay for the trip. I am pretty sure they would not even consider paying for the executors, never mind their partners.
The solicitor cannot act without the agreement of all four of you, and the actions so far of the other two are illegal without the consent of the other two – assuming you can get hold of the Will, or it is shown to the solicitor. Unless they have notified you that you are having your power to act as executor “reserved.” You have made it clear to the solicitor that this is not acceptable, and should confirm that in writing. Bear in mind that the experts time is an expensive way opf referring family arguments, so try to come to some agreement.
Probate cannot be normally granted (except if power has been reserved) unless all 4 executors take part, even if it is to decline the role.
Perhaps it would be best to put your concerns to the family and solicitor in writing, and try to open the way to a reasonable way forward and not a deepening and permanent family rift, which is so very common when things are handled clumsily as your siblings have done. Just try not to make it worse!