Executor withholding money

[Lokie]

Hi. I'm new here and am hoping to get some advice to do with the way the executor is handling my late mother's will.

My older sister and myself are the joint beneficiaries of the estate. We were also joint executors but after a lot of intimidation from her over my doing this, I backed down and agreed to her doing it alone.

There is another sister but my older sister persuaded my mother to remove her from the will several years ago. She is quite ill, in a care home herself and I don't think has the mental capacity to even grasp the fact that her mother has died.

My mother's house was sold immediately after she died. My sister did not want a solicitor handling the probate because she didn't want to have to wait 6 months for the money. As she had controlled all my mother's finances for a long time she was certain that there were no debts, so did it herself.

Probate was done, the house sold very quickly, the sale is now completed and my sister received all the money 2 weeks ago. She has now told me that she's going to hang on to 40k of my share of the estate for 6 months in case the sister who was removed from the will contests it. Although my sister contesting the will is very unlikely I had actually decided to put aside part of my share just to be on the safe side and I had already told my sister this.

I know that if a death is advertised there is a six month period for debtors to come forward, but my sister did not do this and I don't know whether someone contesting a will would be considered a debt, so I'm trying to find out if she can withhold part of my inheritance in case the will is contested or would that be considered that she's not carrying out the instructions of the will? If she is entitled to do it, can she also come up with other reasons to withhold the rest of my inheritance for six months?

My older sister has excluded me from everything to do with my mother's affairs for years so we're barely on speaking terms which makes it difficult.

I would appreciate any advice. Thank you.

[Peridot]

Hi Lokie,

Always difficult when dealing with probate causes further family issues.

You mention that your other sister may not even be aware of her mother's death, possibly due to her mental capacity she may not even understand this. Can I ask what the issue is with this sister? no great detail needed just an indication whether this is a problem she has had since birth or whether this is a more recent illness that affects her mental capacity. I understand that she is in a care home. Has this been a long term arrangement or more recent and how is the home funded? Who would be this sister's representative or carer that could potentially make a claim against the estate on your sister's behalf?
Is your sister (the executor) also proposing she holds back £40k of her own inheritance, in case there is a possible inheritance act claim too?

I expect that at the time your sister was removed from Mum's Will it may have been to prevent her receiving money that could potentially affect her benefits? Could this be the case, or was it due to other circumstances?

If she did make a claim (or someone on her behalf) then depending on her condition and the causes of it, she may well be successful in a claim against the estate. We need a little more info on her condition before taking a view on this. You are right placing a notice for creditors to come forward is a separate thing, although of course sometimes other people who believe they have a claim may well see the notice which prompts them to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. There is however a 6mth time limit from the date of the Grant of Probate, for making a claim under this Act. Of course the Court's have a discretion to extend this time limit which if the reason a claim was not made was due to your sister's incapacity may be a reason for them to extend time.

Distribution of the estate could go ahead with the beneficiaries providing an indemnity to the executor(s) that should a claim they understand they could have to pay back some or all of the inheritance to deal with the claim. If a claim is more likely than not then this isn't the best course of action however and it would be sensible to wait the 6 months before paying the residuary legacies. This should be all residuary beneficiaries however not just the one's chosen by the executor. It is of course possible to make interim payments to residuary beneficiaries, generally keeping back sufficient to deal with any potential claim that arises.

Another option would be to vary the Will dividing the whole estate equally between the 3 sisters but I would suggest that you need to get professional advice on all the possible options, particularly bearing in mind your ill sister's position (and depending on what has caused her illness/condition) and who if anyone would make the claim against the estate on her behalf. Just as an aside has your sister got an attorney or has she a deputy appointed by the Court of Protection? The attorney or deputy could make a claim on the estate on your sister's behalf.

If you could provide a little more information this may help us point you in the right direction.

[Lokie]

Thank you for your reply Peridot.

Yes, the sister who is executor says that she is holding back part of her own inheritance for six months.

My other sister has had serious alcohol issues for decades. She has been bed bound and had a care package provided by the NHS for years. She is currently in a care home but may be transferred back to her flat at some point with the continuing care package. I don't know who would be her representative and I doubt she would have an attorney etc.

I wasn't told that she had been removed from the will until after it had happened. It was overseen by my older sister and a new will drawn up. Obviously my mother authorised this and it was all done legally but I'm certain that it wouldn't have been my mother's own idea. She wasn't like that and she also had dementia.

Medically there is nothing that can be done for my sister and she is well cared for. A couple of things that have been cause for concern previously are that she's gone to great lengths to get hold of alcohol. Also, in the past she has been taken advantage of and signed a extremely lucrative work pension over to someone. We had hoped that, as a vulnerable person, the police would be able to do something about this but that wasn't the case.

If she did contest the will and a court found in her favour I would have no problem with that at all and as I said above, I had fully intended to set part of my own inheritance aside in case this happened. My issue is more to do with the sister who is executor and what money she is legally allowed to hold back not having advertised my mother's death. From what you have said I gather that the six month rule applies in either circumstance.

My sister has actually made an interim payment to me since I posted on here. However, because I hadn't acknowledged receipt of the cheque through the post within a few hours of receiving it, she is now saying she's going to put a stop on the cheque, if I want the money I will have to collect it and I will have to personally pay the bank charges for stopping the cheque. I find this behaviour very intimidating and harassing and am wondering whether this is appropriate behaviour for an executor, or whether there is some code of conduct that she should be abiding by.

Can I ask another question. My mother was in a care home for six months before she died. During this time my sister cleared her house completely and I have no idea what has happened to everything, furniture, jewelery and her other possesions. I tried to access the house to get some items to take to her when she first went into the care home and the locks had been changed so I was not aware of what my sister was doing. There probably were only a few items of any monetary value, which isn't really important to me, but I have nothing of my mother's for sentimental value. I know that possessions are considered part of someone's estate but would this still be the case if my mother's possessions were were taken, sold, given away etc, while she was still alive. She couldn't have given consent for this because she had advanced dementia when she went into the care home.

Thank you

[Peridot]

Hi Lokie,

A few issues here. Provided your mother had sufficient mental capacity to instruct on her Will there is little that can be done with regard to the division of the estate, unless the residuary beneficiaries make an agreement to divide the estate in a different way through a Deed of Variation. From what you say about your sister who is in care, maybe your mother's idea was not as harsh as at first appears. Although of course, who are we to decide how someone spends any money they have.

Ultimately the executor can potentially be personally liable in the event they do not administer or distribute the estate correctly. However your sister's behaviour over the interim payment does seem somewhat excessive. I assume a bank transfer straight to your account would be a step too far for her to deal with? Has she stopped the cheque or did she let it go?

I'm not sure why stopping the cheque assists. If it was made payable to you no one else can cash it in any event? With Royal Mail as it is these days who knows when letters will arrive, with or without cheques! There is nothing to say this is what an executor should do when making a payment, interim or otherwise. Requesting an acknowledgment is reasonable and sensible, but it isn't reasonable to stop a cheque within a few hours of her expectation that it should have arrived.

The aspect of the house contents is difficult. Any items of value owned at the date your mother passed away, should be included in the inheritance tax forms. In addition any significant gifts made in the 7 years before death should also be declared in the forms. Have you spoken to your sister about having any 'mementos' from the house or has she disposed of everything already? This may help explain further: https://www.gov.uk/inheritance-tax/gifts Did anyone have Power of Attorney for your mother before she passed away? Maybe this avenue could be explored further if you don't believe the attorney was acting in mum's best interests but you would need to take some advice on this.

It is a really difficult situation for you. It may be worth your discussing matters face to face with a lawyer but ultimately you would have to decide whether, if there are any options, you take these further with the potential cost this could incur to both emotionally and financially. There is no easy answer I'm afraid. If at all possible it is better to try and keep the lines of communication open with the executor but from the sounds of it this is becoming increasingly difficult. We're here if you need any support.

[Lokie]

Thank you Peridot.

I have deposited the cheque now but will have to wait to see whether it goes through. Yes, a bank transfer would have been so easy. I am going to tell her that she has to pay any charges that might arise through her actions though.

I've never been through anything like this before so am somewhat naive of the law but I'm quite disappointed that she can clear the house and give items only to those who she feels deserve anything without any obligation to share possessions between immediate family and there's nothing that I can really do about it without taking the matter to a solicitor. I've recently found out via a third person that she's given a piece of furniture to one of her own daughters and also quite an expensive piece of furniture to her own husband but I doubt that she will give anything to me willingly.

No, there was no one with power of attorney. I can see now that it was a mistake signing over the executor duties to her alone. I had a bad feeling about it all at the time but she was very nasty to me over it and I caved in to her intimidation to let her do it alone.

I will wait to see what happens and may go to see a solicitor depending on how it turns out. To be honest I just want it all sorted so that I don't need to have any contact with her again. Thank you again for listening and for your advice.