executor refusing to pay beneficiaries

[Libramac]

My brother is executor of my father's will which involved a house which my brother and I were to receive equal share of the sale price.
my brother refuses contact with me and I have found out he has sold the house in 2017 and is refusing to give me my inheritance

[des8]

hi and welcome.
a very poor state of affairs
If you don't know how much the house was sold for, you could probably find out by Googling Zoopla.
if that fails land registry is the next port of call https://www.gov.uk/government/organi.../land-registry

you should write to your brother, pointing out his obligations and demand that he provide an account of the Estate which should outline how much you are due to receive. Warn him that if he refuses you will obtain a court order that he produces an inventory and an account of his dealings with the estate.

The thought of a court appearance might concentrate his mind somewhat.

tagging Peridot

[Libramac]

Thanks, I know price of house, had solicitors letter sent to my brother who told him to go and F himself.
he thinks this is a big joke and doesn’t fear authority.
i am contemplating doing as you suggest or applying to replace him as executor

[des8]

Wait for Peridot to post, possibly tomorrow

[Libramac]

I was told by a local solicitor that I appear to be capable (without his assistance) of applying to the courts to take over as executor or ask courts to order him to provide an account and pay me my inheritance.
he told me I could apply to my local county court, which is different to the area where my brother lives...
do I have to apply to the court where he lives?

[des8]

The courts like to see that you have tried to resolve differences before going to law.
So if you haven't already done so write (signed for) to your brother requesting an inventory and an accounting of his handling of the estate, and warning him of your next step

If that fails you could file an application for a court order to provide the account and pay up
You simply submit a summons application on form N208 to the Probate Court together with an affidavit which can explain why you are having to take this step. The only cost is about £12 fee for submitting the summons application

OR you could apply to have him removed as executor.
However removing an executor is not an easy application. you have to prove serious misbehaviour before the court will even consider forcing the executor to step down. In general, the courts will only remove an executor if tyou can show the following:

1. the executor has become disqualified since the deceased appointed him
2. the executor is incapable of performing his duties
3. the executor is unsuitable for the position.

OR you could file a county court claim suing him for the money due to you.
Use MCOL and you don't even have to post the claim form. https://assets.publishing.service.go...s_May_2018.pdf

[Libramac]

Thanks for your very helpful reply Des8
The property which was sold was subject to two separate wills.
the property was jointly owned by my father and his partner. (Not in common)
Upon death of both persons the property was to be divided equally between the heirs of both parties. ie 50% to my fathers heirs (covered by his will) my brother being executor
and 50% to his partners heirs (covered by her will) her son being executor.
i have now found that probate was only applied for by the other executor (her son) and the house sold.

my brother has never applied for a grant of probate which I believe he should have done in order to sell the property?
if this is the case has my brother committed a criminal offence, and has the solicitor dealing with the sale of the property been at fault?
ive been in touch with the solicitor and he told me he was aware there were two separate executors

[Peridot]

Hi Libramac,

Sorry for the delay I must have missed the tag.

The wording of the wills is really important here. It wouldn't be possible for the property to be sold without a Grant of Probate, if it had remained in your father's name and your father's partner's name. Of course until the house is sold or transferred it could remain in the 2 names but at that transfer point there must have been proof of ownership provided for the transaction to complete.

I wonder whether upon your father's death the property passed to his partner and her Will then dealt with the division upon her death? If that were the case and the property was held as joint tenants rather than tenants in common, then a Grant wouldn't be needed, only a death certificate. That would allow the property to be transferred into her sole name and then upon her death it could be sold with her Grant of Probate in place. A grant wouldn't be needed unless the property was owned as tenants in common (allowing each 'share' to be willed).

The solicitor who 'knew he was dealing with 2 executors' is that the solicitor who dealt with the house sale or your father's partner's probate? I would suggest contacting the solicitor who dealt with the house sale and explain the situation, bearing in mind if they managed to sell the property and didn't complete the correct checks they could be negligent in having completed the sale/transfer of the property but we need more information before that can be established.

I have no idea how they could have managed a sale of a property held as tenants in common (so 2 legal owners and not passing by survivorship as with joint tenants) without proof of 'ownership' ie the Grant of Probate allowing the executor to deal with the sale of the half share.

Do you have copies of the Wills? Have you carried out a probate search on both your father and his partner? If Grants have been issued you will be able to obtain a copy and a copy of the Wills here:-https://www.gov.uk/search-will-probate

[Libramac]

Hi Peridot

thanks so so much for your very informative reply.
the property was held in common, between my father and his partner.
my father left 50% share of property to be shared between myself and my brother (executor)
my fathers partner left her 50% share to her only son (her executor)
i have copy of my fathers will confirming the above.

Both executors have been very evasive and refuse contact with me.
ive ascertained probate was granted to my fathers partners executor ONLY...
I have confirmed my brother has NOT applied for probate which I believe was a legal requirement before completion of a sale..
if I am correct that both executors should have been granted probate prior to the sale I can only assume they have not informed the solicitor who dealt with the sale that there were two separate wills involved, and he may have assumed they were joint executors for my fathers partner.

the solicitor in question was only involved in the sale of the property and had nothing to do with preparation of wills etc.

if all the above is correct I am seeking recourse and wish to know if any criminal offence has been committed, and also if the solicitor may be at fault in this situation.

many Thanks

[Peridot]

Hi again,

If the property was held as Tenants in Common as you believe then it could not have been sold without the other tenant (your father's executors) signature. That signature would not have been valid without there being a Grant of Probate. It is a stretch to say this is potentially a criminal matter at this stage but I would have serious concerns about the actions of the conveyancer and the purchasers solicitor if they did not see they needed the 2 separate signatories who both needed a Grant.

That's why I wondered if they held the property jointly as joint tenants . This is a separate issue from the Will. If the property was held this way then it would not have transferred to the executor and ultimately the beneficiaries upon his death irrelevant of what the Will stated.

I would suggest that you need some further information from the solicitor dealing with the sale. Ask if the property held as joint tenants or tenants in common. The other place you could go is HM Land Registry. Explain the situation and ask if they can shed any light or at least confirm how the property was held when your father and his partner were alive and whether any tenancy was ever severed (this occurs where joint tenants wishing to become tenants in common send a notice to the other which is also registered at HM Land Registry so then they will hold specific shares of the property that can then be willed to anyone and so wouldn't automatically pass to the survivor on death). You will need to contact them as the usual search only provides information on the current ownership.

Were their wills prepared by lawyers? That could be another route to explore if they gave instruction for the property shares to be left to their respective children, the lawyer should have made them aware that the tenancy would need severing to enable this to happen, if they were joint tenants at that time.