Executor and Solicitors uncommunicative.

[sarge]

Hi and thanks in advance fior any help.

My father (JS) died on March 10th 2020. Our family are all from the UK, but I (LS) am living overseas and have been unable to return to the UK since before his death.

I never imagined that my father would have had the presence of mind to write a will, and it was always taken for granted that the family property would be divided among his 3 sons (LS, KS and DS).

He was diagnosed with late stage cancer about a year before his death and clearly had time to get some of his affairs in order.

It seems there was a will which was revoked shortly before his death, the revocation naming my youngest brother (DS) as the sole executor, and my other brother (KS) as a reserve in case of death of (DS).

DS has been completely quiet about the whole situation and I had just assumed that as it would be difficult to sell the family house during the Covid situation, that nothing had been done about any of my father's estate.

My other brother (KS) was getting restless about no information and finally asked DS for some documentation. We received a 3 page document which mentions a revocation and provision for executors and trustees, but nothing about beneficiaries.

I have requested further details from the solicitors involved (I asked for the full revocation document and any previous wills and details on time limits and the obligations of trustees and executors.). They told me they cannot provide me with any information as I am not named as an executor on the will even though I am his eldest son.. I have sent them website evidence to show that I have an entitlement to the information but I have received no reply and there is never anyone available to take a call if I phone.

My brother KS who lives in the UK and is named as a reserve trstee/executor, has also been stonewalled when trying to get information from the solicitors.

I am certain that my brother DS who is the executor will have been the one to employ the solicitors in the first instance.

My Questions are:

Is the document I have, the full document. Is there more to this document and possibly a previous one.

Do I have a right to the full information? Does my brother KS have a right to the information?

How can we pressure the solicitors into being co-operative ?

What are the obligations of an executor? Especially in regard to timely communication.

Are we in danger of missing an imminent deadline ? It will be 6 months since my father died on the 10th September. I heard there was a limit of 6 months since the grant of probate if a will is to be contested under the terms of the inheritance act.

If so is there anything we can do urgently?

Generally, how should we proceed? I know that I need to contact the brother DS who is the executor but I would like to have a better understanding of his obligations and duties and my rights before I bring things to a head within the family.

Any other advice that I haven't thought of.

I will try to attach a copy of the will with names and addresses redacted (wish me luck ??)

Thank you

Lee

[Kezwhi]

If you don’t get a reply on here this evening that can give you any guidance, I would urge you to ring a solicitor first thing tomorrow morning because, as you said, you only have until the 10th of September to put in a claim under the inheritance act of this is the course of action you would seek to do.
Hopefully des8 will be able to offer you some advice this evening- if not - please ring as soon as possible because you are running out of time as you know.

[des8]

If you intend to make a claim under the Inheritance (provision for Family and Dependants) Act 1975 you have six months from the date of grant of probate.
So check here to see if probate has been granted https://www.gov.uk/search-will-probate

The Will itself seems to be complete and I presume executed validly as it is witnessed by a solicitor and a legal secretary (altho' a little surprised to see a handwritten amendment.. not wrong, just unusual)

The solicitor is correct in not giving you the information requested without having the authority of the executor. As he was appointed by the executor
his duty is to the executor only.
If you were to raise a claim against the estate , any solicitor you appoint could write what is k/a a Larke v Nugus letter to obtain that information

You are not named as a beneficiary, so have no right to any information at all.

I suppose it is para 6.2 that is causing disquiet as it leaves distribution of your father's estate entirely at the discretion of the executor, and you have no idea of what he intends.Possibly your father thought this was a sensible way to proceed as a family, but you now have concerns that there may have been an element of coercion

I would suggest search probate records to see what the current position is.
Then contact your younger sibling and ask him how he intends to divide the estate.
If he is uncooperative write to him, and copy in his solicitor, that you (and possibly your other brother) will raise a claim under the Inheritance Act.
Be aware that such actions tend to be expensive, win or lose, but the threat of it might make him negotiate.
If you reach this stage you should be seeking professional advice from a solicitor specialising in contentious probate.
Perhaps initially a fixed fee consultation to see what your options are.

As you are overseas (armed forces??) perhaps you can liaise with your other brother

[sarge]

Hi Kez and DES8, thank you for your replies.

I looked at the You Gov website and there is no mention of my father in the deaths registered for 2020, so I am assuming that the 6 month countdown has not even started. I wonder why probate has not been granted (applied for) yet, but my brother is typically not keen to purue normal channels and avoid costs until the last possible moment. Is it possible under the terms of the will for him to exercise his executors duties without being granted probate?

I was also wondering about the meaning of article 6.3 which says that section 33 of the wills act 1837 does not apply. ??

Anyway It seems that I have all the information I can get without involving lawyers and things getting ugly, so I will have to bring the matter up with him and find out his intentions. I am not in the armed forces, I have a Japanese wife and live in Japan. I am liaising with my other brother who lives in the UK. He runs his own business and things are particularly difficult at the moment, so I will have to do most of the legwork.

Thank you again for the information so far.

Lee

[des8]

You might like to consider placing a standing search at the probate registry as mentioned in the website linked above.
This will inform you if probate is sought within the next 6 months.

If there is real property or stocks and shares within your father's estate, any executor or personal representative will need to obtain probate to deal with them properly.
It is not unknown however for people not to bother, altho' it means those assets cannot be sold.

Before applying for probate the executor needs to collect in (or at least identify and value) the assets and liabilities of the estate for IHT purposes.
Perhaps your fathers estate is complicated, or there are delays due to covid19.
This may explain why there has been no application for probate yet.,

Sec 33 of the Wills Act basically says that if a beneficiary of the will, being a descendant of the testator, dies before the testator his share will pass to his children.
This section has been nullified because sec 6.1 & sec 6.2 leave the estate to the executor to distribute.
If that section was allowed to remain it could have unintended consequences

[sarge]

Hi DES8, thanks again, The bulk of any estate will come from the sale of the family home and it's contents. I would not be surprised if the executor were happy to just use the property and make no attempt to sell it.

Thanks for the info about Section 33 it makes sense under the circumstances.

I can find no way to make a standing search on the you gov site and there are not so many places to look. Is this the page you are reffering to?
(see screenprint in doc)

Thanks, Lee

[des8]

Last paragraph on https://www.gov.uk/search-will-probate:
If the person died in the last 6 months

Probate may not have been granted yet. You can use form PA1S to ask to be sent a copy of a probate if it’s granted in the next 6 months. This is called a ‘standing search’. It costs £3.

You can extend the standing search after 6 months.

[sarge]

Hi, thanks as always.

the link to the gov uk site is a broken link but I can get there via the PA1S link thank you.

I read on the You gov site that the executor cannot receive any proceeds from the will unless also named as a beneficiary. Is this still the case in our situation where the executor seems to have sole and unlimited discretion?

Lee

[des8]

A lay executor can only claim his expenses.
This does not include his time, and he needs to keep accurate records.

[sarge]

Hi and thanks for your reply. I obviously can see that from what you say an executor cannot charge for their services. However our situation seems somewhat different in that my brother (who would be a natural beneficiary) is listed as the executor. And I still have questions that I'm afraid I need spelling out.

Does his role as executor bar him from being a beneficiary?
If so why would he agree to perform that role.
Is it of any consequence that no beneficiaries are specified on the will?
Is it of any consequence that my brother is also listed as a trustee ?

It appears that the property has been left unoccupied and untended, and my late father's car is still standing on the drive. No application for probate has been made as of a few days ago. My brother has not responded to my request by email to discuss the issue.

Thank you for your continued support.

Lee

[des8]

Hi and thanks for your reply. I obviously can see that from what you say an executor cannot charge for their services. However our situation seems somewhat different in that my brother (who would be a natural beneficiary) is listed as the executor. And I still have questions that I'm afraid I need spelling out.

Does his role as executor bar him from being a beneficiary? No
If so why would he agree to perform that role.
Is it of any consequence that no beneficiaries are specified on the will? IMO (as a layman) leaving distribution of the estate "among my family" completely to the discretion of the trustee is a bit odd. Presumably your father trusted your brothers to do as he wanted in a fair manner. I assume you weren't appointed executor due to the problems you would encounter by being on the other side of the world!
Is it of any consequence that my brother is also listed as a trustee ? not unusual for executor to be named as trustee

It appears that the property has been left unoccupied and untended, and my late father's car is still standing on the drive. No application for probate has been made as of a few days ago. My brother has not responded to my request by email to discuss the issue.

Thank you for your continued support.

Lee

Executors are normally allowed 12 months to attend to proper administration without interference from beneficiaries.
At the moment 7 months have passed since your father's passing, and we are in the middle of a pandemic so delays are inevitable.

As a potential beneficiary you could apply to the registry requiring your brother apply for a Grant of Probate (properly called a Citation to take Probate).

Warning him that you are considering this option might persuade him to act

[sarge]

Hi again,

Finally my brother has finally applied for probate. I have suggested to my other brother in the UK that we cannot leave it any longer for the executor to be forthcoming about his intentions. However at this stage I am now being criticised in that it is much easier to contest a will BEFORE probate has been applied for. Whereas I was under the assumption that it was not really possible to contest it UNTIL probate had been applied for. Am I in the wrong about this ?

[des8]

You would not be able in practice to contest a will until you obtained a copy.
As it is a private document belonging to the executor until the grant of probate makes it public I don't see how you could really contest it.
If you had engaged a solicitor he might have been able to start the ball rolling as there is a protocol urging the sharing of documentation, but there is no certainty the other side would have cooperated.

Due to your location I suppose it will fall to your other non-executor brother to deal with this matter and as I sugested in my first post you should perhaps be consulting a solicitor well versed in contentious litigation

[sarge]

OK thank you, you reply has quietened a lot of dissent from other members of the family. Even though being asked directly the executor is still being evasive, claims not to have thought about it and says that he probably never would ?????

Yes of course we must consider consulting specialist legal advice, but it seems the cost is prohibitve unless on a no win no fee basis, In any case our main decision is whether to involve them or not and they can hardly be expected to have an impartial opion about that. I personally just get ridiculously angry when they want to charge several hundred pounds to draft a letter which they already have a pro forma for and I could write equally well myself. It seems I am an an impossible cleft stick.

[des8]

Not going to defend solicitor's charges, but suggest you shop around and ask how they charge.
Most now charge an hourly rate split into perhaps 10 units 0f 6 minutes each.
Some charge different rates depending on the experience and qualifications of the person carrying out a particular task, others use a "blended " or average rate.
Some will give a fixed (or even free) fee initial consultation to discuss the matter and decide a way forward.

I think the days of charging per word for a letter are long gone!