A Very difficult situation

[Linda JL]

Please could I have some advice. My mother passed away in March leaving her estate equally between her five children (two from her first marriage and three from her third). Sadly one my full brothers died 10 days later. This particular brother died without making a will and was never married and had no children. My mother wished for her estate to be handled by a solicitor which the two executors (my full brother and one of my half brothers) arranged. My deceased brother left very little therefore as his next of kin I paid for his funeral and the disposal of his mobile home and shared the very small balance with my full brother. Now that my mother's house has been sold the solicitor dealing with the case has paid out the first tranche but says that the money ring fenced for my deceased brother cannot be paid to me and my full brother as the other executor (my half brother) is refusing permission as he feels that he should be given a share. The solicitor has said this is not the case but now says she is unable to pay out the remainder of the estate as one of the executors will not give his permission. As the two half brothers had absolutely no relationship with my deceased brother and didn't even want to see him in hospital on his deathbed this is very confusing. Where do we stand please? I know this is a very difficult situation.

[Kati]

Re: A Very difficult situation

tagging [MENTION=85500]Peridot[/MENTION] [MENTION=39710]des8[/MENTION] [MENTION=141]enaid[/MENTION]??

[Amethyst]

Re: A Very difficult situation

As your brother passed away after the death of your mother but before the estate could be finalised, the share to which he was entitled from your Mothers Will will now form part of his own estate and should be distributed in accordance with the Rules of Intestacy as he did not have a Will. Your solicitor is correct.

Any clauses in the will about surviving for 28 days ? ~( do you have a copy of the will ?- sometimes there is a clause about distribution if a beneficiary dies within 28 days of the testators death )

Is your half brother questioning whether he should have a share of your brothers estate under instestacy rules maybe? In which case he is wrong - as your full brother had surviving full siblings ( you and your other brother ) and it would only go to him if you both died and had no issue of your own.

IMO anyway [MENTION=85500]Peridot[/MENTION] will know for certain.

Did your solicitor give a reason your half brother feels he should be entitled to a share of your brothers share of your Mother's estate ?

[charitynjw]

Re: A Very difficult situation

There may also be the matter of quick succession relief (inheritance tax) to be factored in.

[Linda JL]

Re: A Very difficult situation

As your brother passed away after the death of your mother but before the estate could be finalised, the share to which he was entitled from your Mothers Will will now form part of his own estate and should be distributed in accordance with the Rules of Intestacy as he did not have a Will. Your solicitor is correct.

Any clauses in the will about surviving for 28 days ? ~( do you have a copy of the will ?- sometimes there is a clause about distribution if a beneficiary dies within 28 days of the testators death )

Is your half brother questioning whether he should have a share of your brothers estate under instestacy rules maybe? In which case he is wrong - as your full brother had surviving full siblings ( you and your other brother ) and it would only go to him if you both died and had no issue of your own.

IMO anyway @Peridot will know for certain.

Did your solicitor give a reason your half brother feels he should be entitled to a share of your brothers share of your Mother's estate ?

Thank you for your reply

I have seen the will and there is definitely no 28 day clause just a basic leaving her estate to her five children to be shared equally except I received her jewelry as her only daughter. The solicitor did not give a reason only that my half brother had refused permission for the monies to be paid out therefore it is still in the solicitor's client account. She informed me that I would have to appoint an independent solicitor as she is acting for the executors. I really don't want to go down that road and neither does my brother.

[des8]

Re: A Very difficult situation

Perhaps you should write to both executors (and copy in the solicitor), pointing out their duty to act diligently and without unreasonable delay.
You can also ask that they provide an “account” of the Estate which should outline how much you are due to receive.
If they refuse point out there is a relatively straightforward process for obtaining a court order that they produce an inventory and an account of his dealings with the estate, and if necessary you will act.
You won't need a solicitor for that, and the threat of giving an account of progress to the court, plus probably advice from his solicitor might galvanise him into reasonableness

Ultimately, if they do not comply with their obligations, you may be able to have the troublesome Executor removed. This is not a straightforward process and involves a costly application to the court. It is important to ensure that you obtain proper legal advice before considering that step as in particular an initial “protocol” letter will need to be sent warning the Executor, before any court application is made. If this step is not taken, then costs might be ordered against you, so expert advice, preferably from a solicitor experienced in this area, should be obtained

[Linda JL]

Re: A Very difficult situation

Thank you for this advice. I was told by someone that the Executor has a duty to comply with the wording of the will by the time one year has elapsed from the date of death. Is this correct? As I would rather wait until the anniversary of my mother's death before trying to persuade my half brother to allow the monies to be paid out.

[des8]

Re: A Very difficult situation

This advice sounds like a misunderstanding of "the executor's year".

The Administration of Estates Act 1925 provides that a personal representative is not bound to distribute the estate before the expiration of one year from the date of death.
Also monetary legacies normally only attract interest after one year from date of death.

For a straightforward estate one would expect settlement sometime between six months and a year. Obviously there can be delays not caused by the executor eg in selling property, but the executor should not unreasonably delay distribution. Each case will revolve around individual circumstances.

You as a beneficiary are under no obligation to chase the executor, so if you wish to await the anniversary of your mother's passing, you are at liberty to do so.

[charitynjw]

Re: A Very difficult situation

https://www.legislation.gov.uk/ukpga.../23/section/44

[Linda JL]

Re: A Very difficult situation

Many thanks for your advice and reply. The solicitor who is acting for the Executors of my mother's estate has said she will wait until next week and then ring my half brother to find out if he has sought legal advice as to why he feels he has a right to my full brother's estate. She said if he still refuses to give permission for the funds to be released I will then have to appoint a solicitor of my own. This is will, of course, be expensive and unpleasant - I truly hope this will not be necessary.

[des8]

Re: A Very difficult situation

It is not necessary to appoint a solicitor to obtain a court order that he produce an inventory and an account of his dealings with the estate, but if you do not wish to go it alone, solicitor's costs should not be overly great, but I hope matters are resolved for you without the need.