Please help clarify terms and possible interpretations of a simple seeming Will

[Guest]

Hi all, am about to hire a solicitor for a bitter legal battle and yet wonder if we might have been misinterpreting the Will in question...

1. The Will says we - 2 people - are executors and trustees.

Why does it explicitly say we are both executors and trustees? What is the difference between them? Does being a trustee mean we have additional obligations along with being executors? There is no official 'Trust', just bank accounts, possessions and property.

2. The Will says, we Trustees should hold the residue of the estate on trust to retain, or sell it and divide that residue between two family members (us - the aforementioned executors and trustees).

When it says retain, does that mean we automatically gain equal ownership of the property and possessions? Or we - as the recipients - can not receive or bequeath ownership, but only receive the proceeds of the estate as money from a sale?

Standard Provisions of the Society of Trust and Estate Practitioners (2nd Ed) apply, if that also makes a difference.

[atticus]

Q1. There is a simple trust. See your point 2. In practice for this type of will there is no real difference.

Q2. "retain" would be as trustees. You can transfer title to yourselves as individuals, or sell property as executors/trustees and then distribute the money to yourselves as individuals.

[Pezza54]

These are my thoughts, I could be wrong:
If you both decide to retain the property and hold it in trust, trustees should be named on the title deeds as the legal owners and own it as tenants in common.
A declaration of trust should be drafted
A dispute may arise if one owner wants to sell the property and the other owner doesn't
If the owner who wants to retain the property is unable to buy the other owner's share, then the owner who wants to sell may need a court order to force the sale

Please read the article "Applying to Court for an Order for Sale" at www.howellslegal.co.uk

You did mention "a bitter legal battle" in your thread

[Pezza54]

I've just read your March thread and if this thread relates to the dispute with your sister not being prepared to obtain an up to date valuation of the property and pay you half the valuation for your share, my previous post is on the right lines
You have the probate grant and are an estate executor so you can obtain a current valuation of the property. You do not need the other executor's permission. Best to get 2 valuations and average them. Only then can you determine whether the difference between the probate valuation and the current valuation makes it worthwhile applying for a court order for sale.

The above assumes your sister is still willing to pay you half of the probate valuation

[Guest]

I've just read your March thread and if this thread relates to the dispute with your sister not being prepared to obtain an up to date valuation of the property and pay you half the valuation for your share, my previous post is on the right lines
You have the probate grant and are an estate executor so you can obtain a current valuation of the property. You do not need the other executor's permission. Best to get 2 valuations and average them. Only then can you determine whether the difference between the probate valuation and the current valuation makes it worthwhile applying for a court order for sale.

The above assumes your sister is still willing to pay you half of the probate valuation

Thanks. Difficulty being that she actually has locked the entire place off now and won't allow me or anyone else entry. Either I accept the offer, or we will have to play the telephone game via solicitors. I have also been informed of the cost of a court order for sale. It's colossal.

[Guest]

These are my thoughts, I could be wrong:
If you both decide to retain the property and hold it in trust, trustees should be named on the title deeds as the legal owners and own it as tenants in common.
A declaration of trust should be drafted
A dispute may arise if one owner wants to sell the property and the other owner doesn't
If the owner who wants to retain the property is unable to buy the other owner's share, then the owner who wants to sell may need a court order to force the sale

Please read the article "Applying to Court for an Order for Sale" at www.howellslegal.co.uk

You did mention "a bitter legal battle" in your thread

Thanks. The cost of a court order, as it turns out, is enormous.

Our issue is basically we are both the legal owners and yet at least one party is acting like they are sole owner already. I had a small sliver of hope that actually the Will stated we were supposed to sell and divide up the damn thing.

[Guest]

Q1. There is a simple trust. See your point 2. In practice for this type of will there is no real difference.

Q2. "retain" would be as trustees. You can transfer title to yourselves as individuals, or sell property as executors/trustees and then distribute the money to yourselves as individuals.

Thanks. Such a pity that the Will did not simply say we had to sell and then divide up the finances. This situation was entirely predictable, as I had often tried to point out.

[Pezza54]

I don't think solicitors will want to be involved in a "telephone game"
They will want to write letters to justify their fees and maintain a paper record

Who did the probate valuation? You could try asking the estate agent to update their valuation

[PallasAthena]

As co-executor you could of course have a locksmith change the locks and then do the right thing and send your sister a key for her use - after you've had valuations done.

However I can see this might escalate the conflict between you quite a lot....