What will the probate office do?

[leela]

Mum's executor intends to renounce her role, and send her renunciation form and the will to the probate office. She said that the probate office will then arrange probate. Will they?
My brother and I intendrd to apply for probate as NoK, will this action of hers block us from doing so?

If the probate office appoints a solicitor to do it, what are the downsides, if any?

[PallasAthena]

I don't believe what the renouncing Executor told you is correct. The courts/probate office only need to step in if no-one applies to take on the role of administrator. The Will remains valid even if none of the executors named in it is willing or able to act.

Is there a surviving husband of your mother who is willing and able to take on the role? If not as the children of the deceased you and your brother are entitled to apply to administer the estate - what you apply for is 'Grant of Letters of Administration with the Will'. You can then be appointed as 'Administrator' by a "grant of letters of administration". For practical purposed this is equivalent to being made executor by a grant of probate. You administer the estate in accordance with the Wil (not the rules of intestacy).

However what I'm not sure about is how you get hold of the Will if the renouncing Executor has sent it to the Probate office as you will need it to apply for the 'Grant of Letters of Administration with the Will'. So if you are willing to take on the role of Administrator I suggest you phone the Probate office and ask for their advice on this point, and check what forms you need to use.

Personally I wouldn't want a solicitor to be executor or administrator if the estate is straightforward. It just tends to make the process longer and more expensive. If you get yourself appointed as Administrator you can always appoint a solicitor later (paid for from the estate) if you need advice or to act for the estate if it turns out to be more complicated than you had thought.

[leela]

Thank you for your detailed reply. I called the probate office earlier this week. Someone was supposed to call me back that day, but they didn't. So I emailed, and I haven't had a reply to that either!
So that's why I'm hoping someone here will know how to progress.

I'm hoping that I can do the probate myself, but with no-one getting back to me from the office (and the executor refusing to speak to me) it's all become more tricky than it needed to be.

[PallasAthena]

I'm afraid I have no suggestions for what you can do next other than keep trying to contact the probate office for advice.

I assume the person renouncing was the sole executor of your mother's Will.

I do not believe the executor is following proper process. What she should be doing is completingher renunciation form (Form PA15) and give the signed/witnessed form to you, together with the original Will, so that you can apply for Probate/Administration attaching the Will and the PA15 form to your application. Has she sent it directly to probate office from ignorance or is it a deliberate attempt to stop you applying for probate?

So you need to speak to the probate office for advice because without the Will and Form PA15 you cannot put in an application yourselves.

Have you seen the Will or a copy of it? Are you and your brother the beneficiaries?

Do you have the Death Certificate (also needed to put in an application for Letters of Administration)?

[leela]

Yes, she was/is the sole executor, as the others were very old and in very poor health, so immediately asked to renounce. And I'm afraid that her demeanor throughout has been malicious. She is also extremely ignorant of the law, which is what led to the difficulties that resulted in the bad feeling. But that's another very long story. It's been a nightmare cocktail, frankly.

I have a copy of the will, but not the original, and death certificates. And yes, my brother and I are beneficiaries, but in reality the council will take it all, as mum accrued a massive amount of deferred care debt. So this four months (so far) of nightmare doesn't even result in any inheritance for us!

I'll call the probate office again on Monday, and be on hold for goodness knows how long, again. Hopefully this time I'll get someone knowledgeable at the end of it.

Thank you for your advice (and for listening!)

[PallasAthena]

If you've looked at the money side and are certain that your mother's entire estate will be taken by the council for care costs, and there will definitely be nothing left for other beneficiaries, then you could just walk away. Don't apply to be administrator. Leave it to the council to sort out how to get their money.

You and your brother may be next of kin but that doesn't impose any legal obligation on you to administer your mother's estate, nor any liability for paying her debts if her estate is insolvent. If it were me I'd be inclined to do nothing, 'not my problem'. Nobody can make you take on the role of executor/administrator if you don't want it.

[leela]

I've been wondering about walking away, but I wasn't sure how that works. Who is likely to approach us about it? The probate office?

There is a complication though. Mum and I owned a rental property which reverted to me by survivorship. Likewise the property that my sibling has lived in for over 20 years was also held in joint tenancy with my mum, so the council will head our way for those.

Thanks again for your really clear and helpful responses and advice. They're helping me think clearly.

[PallasAthena]

II don't know much about how the care home fees recovery works for jointly owned properties that have passed by survivorship rules. I assume both properties were owned as Joint Tenants [Joint property ownership: Overview - GOV.UK (www.gov.uk)]. Have the council registered a charge at the Land Registry against one or both properties?

It might be best to start a separate thread on here asking advice about the council's powers in your situation.

But as far as the subject of this thread is concerned, probate, when the council come your way would it make any difference if you were executor or adminstrator of the Will? I can't think why it would. If both properties were owned as Joint Tenants and you and your sibling became 100% owners through survivorship then ownership hasn't passed because of the Will. There was no role for executor/administrator (unless the estate is liable for IHT). So the council won't be dealing with the executors/adminsitrators of the Will as far as the properties are concened, but with you and your sibling as the registered owners.

If the estate is liable for IHT and the council is trying to claim both houses as well it sounds like a complex situation where you would need professiaonal legal advcie if your were executor/administrator.

[leela]

There's no charge on the houses, and yes, they lie outside of the will and probate. I imagine that the council will come to us after probate and after they've had the entirety of mums estate and realised that it barely makes a dent in the debt.
Apart from her current account, she had a small investment in a land fund, so that's what makes probate necessary.

And yes, I already plan to see a specialist in the care debt area, once I've got this immediate issue out of the way.

Re the original question, if the will ends up at the probate office, we can still apply for probate and they'll link the will and the application if I enclosed a covering letter. The downside is that we won't be able to use the online form, so the process will take longer.