Suspicious that a Will cannot be found. What next?

[PallasAthena]

I was of the impression that the Administrator couldn’t sell the house unless both parties agreed too, because a spouse can’t be “kicked out”.

The spouse is the Administrator so if he decides to sell nobody will will be 'kicked out'. He will just have chosen to move out and live elsewhere.

The Administrator does not need the agreement of the beneficiaries to sell the house.

The Administrator's solicitor is not under any duty to advise you of all the 'options and consequences regarding the property' because you are not the solicitor's client.

[PallasAthena]

I will look into costs of setting up a discretionary trust for minors. I can’t see another bargaining tool, because he certainly wouldn’t forego anything to me directly.

It's not difficult or expensive to set up and could be written into a Deed of Variation although they can be a pain to administer and deal with the tax issues with HMRC.

But again there's not much point investing time and effort in this unless the spouse is willing in principle to consider varying the distribution of the estate under intestacy rules in order to reduce what he receives and increase what you and/or your children receive.

Nothing you have posted so far suggests he is willing to engage voluntarily with you at all on this.

Other than appealing to his goodwill I can't see that you have anything to bargain with. The notion that you might be able to get your mother's marriage annulled for lack of mental capacity seems to me to be merely grasping at straws.

[atticus]

Have you actually had any communication with this guy?

[Carlson999]

PALLASATHENA:

the poster HARISELDON stated that the Administrating solicitor COULD sell the house and distribute the cash of the two beneficiaries couldn’t agree on terms. So not sure who is right. It may be the case where nothing happens until the beneficiaries agree legally or otherwise so they will then just follow the process.

As you rightly stated in your second post, I really have next to no legal chance of forcing change. No history of marriage annulments after death, very difficult to prove mental incapacity at the time of marriage, and huge costs in bringing it to court. It’s a no-go.

What I will do this week is send my DOV and a copy of my mother’s 2018 letter stating she wants the property to go to her grandchildren and for them to rent it out to have an income. Not in any way legally binding, but could influence his goodwill decision. Maybe a 10% chance at most, but a chance worth trying for without spending hundreds first.

[Carlson999]

ATTICUS: not yet, but letter and DOV going to him this week. Due to an awful history between us, there will be no chance of direct communication or even respect.

[atticus]

You do not help yourself by misunderstanding what you have been told, by HariSeldon amongst others.

All beneficiaries must agree to any deed of variation. If they do not all agree, then the executors must distribute the estate in accordance with the terms of the will. PallasAthena has said nothing inconsistent with that.

[HariSeldon]

the poster HARISELDON stated that the Administrating solicitor COULD sell the house and distribute the cash of the two beneficiaries couldn’t agree on terms.

PallasAthena said the same thing... "The Administrator does not need the agreement of the beneficiaries to sell the house."

What may be confusing matters here is if the husband is wearing two hats; one as beneficiary and another as administrator.

As beneficiary, the husband cannot unilaterally do anything. For example, if the husband wanted to insist on joint ownership so that he could continue to live in the house without having to find tens of thousands to buy out 'your share' then he cannot do that without your agreement.

However, as administrator, the husband can (and indeed often must) unilaterally decide to sell the house to realise cash to be able to pay you your share of the estate; the administrator has a legal obligation to settle the estate according to intestacy rules unless both beneficiaries agree to vary those rules with, for example, a deed of variation.

[Carlson999]

You do not help yourself by misunderstanding what you have been told, by HariSeldon amongst others.

All beneficiaries must agree to any deed of variation. If they do not all agree, then the executors must distribute the estate in accordance with the terms of the will. PallasAthena has said nothing inconsistent with that.

I just want to be clear on the definitions here. The Executor (spouse) has appointed a solicitor (Administrator), and if myself and the spouse (the only beneficiaries) can't agree, they have the power to sell the house at their (lower than market) value and distribute the cash. Is that correct?

[Carlson999]

PallasAthena said the same thing... "The Administrator does not need the agreement of the beneficiaries to sell the house."

What may be confusing matters here is if the husband is wearing two hats; one as beneficiary and another as administrator.

As beneficiary, the husband cannot unilaterally do anything. For example, if the husband wanted to insist on joint ownership so that he could continue to live in the house without having to find tens of thousands to buy out 'your share' then he cannot do that without your agreement.

However, as administrator, the husband can (and indeed often must) unilaterally decide to sell the house to realise cash to be able to pay you your share of the estate; the administrator has a legal obligation to settle the estate according to intestacy rules unless both beneficiaries agree to vary those rules with, for example, a deed of variation.

Ok thanks for clarifying Hari. In this situation the husband could easily buy me out with his sizable cash residue without selling the house. But I prefer not to. My ideal situation would be for him to agree to my DOV of course. My second best option would be for the house to be sold on the market and for the cash to be released, even if he doesn't want that. So in that last situation, would I be right in saying the Administrator by default would force the sale?

[HariSeldon]

I just want to be clear on the definitions here. The Executor (spouse) has appointed a solicitor (Administrator), and if myself and the spouse (the only beneficiaries) can't agree, they have the power to sell the house at their (lower than market) value and distribute the cash. Is that correct?

No, hence the confusion; as there is no will there can be no Executor, instead because this is an intestate estate, the person responsible for administrating the estate is called the Administrator. So in your case the spouse is the Administrator and the solicitor is just an agent of the spouse/Administrator.

The Administrator or their agent (the solicitor) has to sell at market value, if a RICS surveyor has valued the property then you will be hard-pushed to challenge that market value. Not impossible but not easy either.

[Tofros]

Neither of you has any entitlement to a particular asset either in full or in part. The administrator must settle beneficiaries entitlement to a proportion of the estate value, that’s all. If there is enough free cash in the estate to settle one entitlement in cash and the other with property then the administrator is free to do that. The best course is as suggested to try for a deed of variation. It seems unlikely however that he would agree to anything which would not entitle him to live there until death i.e life interest or right of occupation prior to what ever mechanism for th your children’s benefit kicks in. That would have potential IHT implications on his own death ( depending on the value of his estate). Identity of the trsustees for the life interest could be important depending on their powers.

He might suggest he simply leaves the house to your children in his will, but he could change a will at any point so not very secure, though probably a much cheaper option.

[HariSeldon]

In this situation the husband could easily buy me out with his sizable cash residue without selling the house. But I prefer not to. ... My second best option would be for the house to be sold on the market and for the cash to be released, even if he doesn't want that. ... would I be right in saying the Administrator by default would force the sale?

The Administrator has a legal obligation to act in the best interests of all of the beneficiaries and of the estate itself; unnecessarily selling the house and incurring additional costs and the inevitable delays in finalising the estate would be counter to that overriding obligation.

So even if the Administrator was an impartial third-party they may find it difficult to justify selling the house if one beneficiary said they would accept the property at the RICS-valuation as part of their inheritance. In your case though the Administrator is the main beneficiary so they're never going to entertain that idea and you are going to need some very compelling evidence to challenge the valuation in court.

[Carlson999]

Thank you all. Deed of Variation sent and now I just have to wait for the response.

Really disappointing to hear that the RICS valuation will be hard to challenge. House was valued at 375K which I think is waaaaay undervalued (based on similar properties, neighbouring properties of the same size/developer sold in previous years etc.). 420K is realistic in my view. Would you bother to challenge it or pay 500 GBP for another RICS valuation?

Thank you for the info regarding the Administrator's responsibilities regarding the property...which means if the main beneficiary was ok with the original valuation and wanted to "buy my part" of the property out to finalise the intestacy, I kind of have no choice without court. And I really don't want court.

[Carlson999]

The Administrating solicitors are now stepping back (quite understandably) until an agreement is reached between myself and the surviving spouse. I would imagine the spouse will now employ the services of a separate solicitor to communicate.

If the Deed Of Variation is not signed, I will push for the house to be sold at market value on his death and hope he agrees. Alternatively, I could request another RICS valuation and hope he accepts me doing that (although as @harriseldon said, it wouldn't be in his financial interest in doing so).

Finally, there is another issue: My mother verbally maintained she would leave cash of 50K in her safe. This amount may still be in there and would not be part of the spouse's entitlement - it would need to be split 50/50 as part of the cash estate. He has access to the house and possibly safe but the Administrator doesn't want to get involved. Is there anything I can do to force the checking and then declaration of this, or am I very unlikely to be able to do anything about this?

[atticus]

The things that people say are not always true, and is this the mother from whom you had been estranged for several years? But you should ask.