Do I have to Sell? (Scottish Law)

[Kirkyboy]

My mother passedaway 27th August 2017
She died intestate
There are 3 benificiaries
Myself and brother and my niec. She is in care, supported living.
My mum had set aside a sum in a joint account for her and alo a sumin 2 seperate accounts for

me and my brother.
My mum did a Will in 1990 which she did not send back to be notarised hence the intastate.
She did a will in 2000 in Spain where she left the property in Spain to myself and brother.

I was under the impression from my mum that everything was sorted out.


My niece who has mental difficulties, cannot count, has no appreciation / understanding of

money and is therefore does not have capacity.

I employed a Solicitor in March of this year and they sat on the case file (forgot about it)

and my email 6/7 months later to find it and act on it.
She has employed a solicitor who wants to 'realise the assets'

Myself and my brother want to do the place up as the property needs a lot to realise the

potential.

My solicitor tells me that I cannot do any of that, and indeed, I myself cannot live there.

There is a lot of things/stuff to do around the house. I am obviously emotionally attached to

the house also and would rather have time to do the place up.

My original idea was to rent it out and use the rental income to improve the property.

I feel that he is not giving me the best advice, as my niece will be financially ok with her

share.

My solicitor is also and Estate Agent and I feel he has a conflict of interest. The other

Solicitor might also be putting the squeeze on him as it's taking so long. My feeling is he

just wants to get it all sorted asap End Of
He says I have to sell and cannot live there and no one else can either and we MUST put it on

the market NOW

[Kirkyboy]

that was long winded
My basic question is can they make me and my brother sell the house and or rent it out or even house sit with a view to doing up the property. There is more than enough money to satisfy my niece.
She is being encouraged/coerced by her carers who smell money.

[ostell]

How does the niece come into this?

[Kirkyboy]

She is the daughter of my departed sister and as such is a benificiary .My niece has learning difficulties and she is in supported living. Her carers have go her to go see a Solicitor 'to make sure she get's what she is entitled to'.
I do not think she has the capacity, indeed my mum used to have Power of Attorney over her. She doesn't have a clue about money. I feel her carers are driving the case and both Lawyers are loving writing those letters.
My lawyer is also an Estate Agent and want's to sell so he can receive his commission..

[Amethyst]

You believe your Mother died intestate.

There are three children - you, your brother and your late sister. Your late sister has a daughter who is in Supported Living.

The estate therefore, you believe under succession, is split equally between you, your brother and your niece ( her mums share).

However, in 2000, your Mum did make a Will while she was in Spain, under which she left a property in Spain just to yourself and your brother.

Did your mum reside in Spain permanently ?

Do you have a copy of that will ? What's happened to the spanish property and have you shown that Will to your solicitor?

Think that needs checking out first, before looking at realising the assets from the estate to pay to your Niece.
How is your Niece's care paid for at the moment ?

Peridot

[Kirkyboy]

No my mum did not reside in Spain. She had a little apartment. I am just finalising things over there and put it on the market. My lawyer here has seen the will. It covers only the Spanish property. with myself and brother the sole benificiaries
My concern is that the carers are rushing my niece into things she does not understand.
My lawyer says I must sell the property. Myself and brother do not.
He says I must vacate the property and I cannot have anyone here including house-sitting and paying the council Tax.
We want to do the place up before selling. and I feel she is still going to have, a perhaps more valuable asset.
He tells me all the things I shouldn't do and never what I can do.
I would like to be here a while as it was my mum's house with many memories.

[Amethyst]

Okay, I've tagged Peridot to look in so hopefully she will on Monday.

It is completely understandable that you don't want to sell the property and it makes sense to do it up before selling to maximise the value of the estate. It is partially your property - could you look at getting valuations on it as it is and then offering to buy out your nieces share between you and your brother? The pressure all seems to be coming from your Niece's side ( who holds power of attorney for her now? is there anyone acting in her best interest ? are her care fees needing to be paid from the estate maybe and that's why there's pressure ?)
As you are one of the owners of the property, along with your brother and niece, then you all have the right to live there, but I don't know about how the same works in Scotland. I'm also not sure about this second Will. A Will is a Will, and if the Will in existence does only deal with one specific asset then the rest would be the residual estate and dealt with as a partial intestacy ( so same effect in essence)
I might be inclined to go and see another solicitor, one who isn't an estate agent and who doesn't have any potential conflict of interest.

des8 might have some thoughts.

[des8]

I cannot understand why you should not ascertain the value of the house (three independent valuations?) and then you and your brother jointly buy out your niece's share.
You could use your share of any other assets to defray the cost, and if necessary obtain a mortgage to cover any shortfall.

It may be Scottish rules don't allow it
tagging ScottishSolicitor

[Kirkyboy]

My Solicitor is going to arrange someone to come round and survey the house. I should get 3 Independant valuations? My niece is cared for by a private company under Social Services.
My original thought was that the Spanish Will would have covered both. It was done in accordance to Spanish and Scottish Law (done in Spain).......but only for the Spanish property..
He seems to be in a rush to finalise things. This could be pressure from my niece's Solicitor to realise her assets. My Lawyer sat on my case (forgot about it) for 6/7 months which might be the reason for haste.

[des8]

I'm not going to comment on the legal aspects but if I was in your position I would certainly obtaining alternative valuations.
You are unhappy with your solicitor, who is also an estate agent so why would you trust any valuation he produced?
Commonsense says obtain other valuations from INDEPENDENT valuers (preferably RICS qualified)

[Kirkyboy]

Thanks for all your replies. My lawyer says that things are different in Scotland
My Mother had set up a joint account for my niece and 2 similar amounts for me and my brother which gives my niece more than us. That is not a big bone of contention for us, but the need to move out and sell?
My Lawyer is holding up the distribution of assets until the property is sold.
My financial outlook is not good at the moment due to not working / health concerns and waiting for the Spanish property to sell.

[Kirkyboy]

My Lawyer also says that if I don;t sell now, that if any drop in price from now and the price in the future, makes me personally liable for any difference. Her lawyer according to My Lawyer, says that she has 'capacity. i know this cannot be right at all. She doesn't even know what 1+2 is or 20+10 ..

[des8]

I know enough about Scottish inheritance laws to know my knowledge is severely deficient.

However my understanding is that children acquire a vested right to claim legal rights at the date of death.
Legal rights are rights to the payment of a sum calculated on the value of the net movable estate, and not to a particular asset (although agreement can be made between beneficiaries to allow individual assets to be made over to a beneficiary as satisfaction of their due)
Note that land and buildings (heritable estate) are excluded from legal rights claims.

In the absence of advice from any of our qualified beagles I would suggest it might be worthwhile investing in a consultation with another lawyer to ascertain if there are alternatives to what your current solicitor suggests.

[Kirkyboy]

Alarmingly, I have been reading that My Lawyer as 'Executor' has the power to sell?
2 of 3 Benificiaries DO NOT want to sell !!

[des8]

In that case splash out and obtain some independent qualified legal advice.

It seems odd to me that the executor is insisting on selling (through an independent agency with all their costs) when there is a ready market (you and your brother) which will cost the estate nothing.
Does he have a friend lined up who wants to buy and then resell at a profit? (just wondering, not accusing!)