Probate

[razor]

My situation has been discussed on previous threads, but after 26 years, the situation remains the same. I now believe it will have to be resolved through the legal system, but I don't know where to start, or who to go to, perhaps someone could give me some guidance.
My brother died intestate 26 years ago. he was married, two children 13, &15.there were two administartors, one a solicitor, the other his wife, "letters of administation" were granted. this was in 1986. Since then I have discovered that the intestacy rules were never administered, and the house deeds are still in my brothers name as the "Registered Owner"
I am aware of the intestacy rules from that time, these have been a topic of discussion and dispute within the family for many years, but I would now like to persue it from a differant perspective. The whole sinario must surely go back to 1986. If the property had been in "joint names" then the intestacy rules would not have applied, ( I believe) so would it be possible to argue the case for his wife, that she should have been equal owner of the property in 1986 ?. If not, why were the deeds not put into the names of those who would have become beneficiaries under the intestacy rules at that time.
Surely, the existing property cannot remain in the name of a deceased person. Who should be liable for administartion of the estate not being completed back in1986, both "administrators" are still alive, and the widow still lives in the same property (although the deeds are in her deceased husbads name). How do we go back to 1986 to complete the administration?. neither of the children have recieved there financial entitlement under the intestacy rules, as the were never implemented at the time.
Should or could his widow now sue the other "adminstrator" who was the family solicitor acting for her for failing to administer the estate? (even as she was/is the other administrator), if not, who should be liable?
Any advice would be appreciated. Please feel free to ask for further information it it helps.

[CleverClogs]

Re: Probate

My brother died intestate 26 years ago. he was married, two children 13, &15.there were two administartors, one a solicitor, the other his wife, "letters of administation" were granted. this was in 1986. Since then I have discovered that the intestacy rules were never administered, and the house deeds are still in my brothers name as the "Registered Owner"
I am aware of the intestacy rules from that time, these have been a topic of discussion and dispute within the family for many years, but I would now like to persue it from a differant perspective. The whole sinario must surely go back to 1986. If the property had been in "joint names" then the intestacy rules would not have applied, ( I believe) so would it be possible to argue the case for his wife, that she should have been equal owner of the property in 1986 ?. If not, why were the deeds not put into the names of those who would have become beneficiaries under the intestacy rules at that time.

Incompetence does rather spring to mind.

If your late brother was the sole owner of the house, then the intestacy rules should have been applied and the deeds/land registration should have been amended accordingly.

If your late brother and his wife were tenants in common of the house, then his share of the house became part of his estate and the intestacy rules should have been applied, with the deeds/land registration amended accordingly to state that she is a tenant in common with her children.

If your late brother and his wife were joint tenants of the house, then his share of the house automatically devolved to his widow and the deeds/land registration should have been amended accordingly to state that she is the sole tenant.

The intestacy rules are set out in section 1 of the Intestates Estates Act 1952 - link.

In none of those cases would or should you have received anything other than perhaps as a gift by one or more of his beneficiaries; they were under no obligation to give you anything. (I do realise that may not have been why you were asking - I was merely trying to explain as clearly as possible.)

Should or could his widow now sue the other "adminstrator" who was the family solicitor acting for her for failing to administer the estate? (even as she was/is the other administrator), if not, who should be liable?

One might suppose that they would be jointly and severally liable but, as 1986 was 25 years ago, any claim now made would have been long since statute barred by the Limitation Act 1980 - link.

The children could claim that the matter have been concealed from them, thereby evading the limitation, but I rather doubt that such a claim would succeed.

[The Debt Star]

Re: Probate

Except to say CC, that taking on face value what the OP has told us, the property in its entirety must have been solely owned by the deceased and not jointly and as such remains an unadministered asset of the estate. Query then if the statutory trusts arose at the time?

If this situation had arisen today, then under present intestacy rules the first £250K would pass to the widow outright and the balance would be held upon the statutory trusts.

I have no idea what the rules were over a quarter of a century ago and assume they apply now. the values applicable at the time must surely apply. Assuming the value of the house was below the statutory legacy limit of the time then it would have passed to the widow under the intestacy but of course the children would have had an Inheritance Act claim, which they could have pursued on turning 18.

Agree with CC though it seems too long ago now, although, as it remains an unadministered asset, the interesting point would be to know if, in light of what the value of the estate in 1986 if the statutory trusts arose at the time?

[razor]

Re: Probate

Thanks for your responses, CC had it right in his first line, I personaly have no finantial interest in the estate, but it is part of my duty towards his widow,and my two nephews, to help resolve this situation. Up to date, I suspect over £15,000. has been spent on legal costs and they are no nearer a solution.
As the deeds were in his name only, we know the "rules of intestacy" SHOULD have applied, and both children SHOULD have recieved approx £10,000 from the estate, when the intestscy rules would have applied. This part of the administration was not completed. The solicitors who have been involved since 1985, have connections with the solicitor who was, and still is, one of the administators of the estate.
Could the widow claim that she was a "joint owner" of the property in 1985 ?
The deeds for the house are still in my brothers name, so theoreticaly I suppose all his dependances have been living in a house they do not own. what I am trying to do, is have the house transferred into his widows name as the sole owner, and see that the estate is administerd as it should have been in 1985.
Who today would resolve this situation ?, is it that the solicitors who were the administartors at the time are at fault, and would they still be liable ? I have suggested to the family, that she should go to another solicitor because her existing one has a "conflict of interest" being connected to the administrator.


Any suggestions on who could help or who I could contact for advice ?

[Emerald]

Re: Probate

Theres a couple of lawyers who post over here on wills - http://boards.fool.co.uk/wills-probate-51094.aspx

[The Debt Star]

Re: Probate

Thanks for your responses, CC had it right in his first line, I personaly have no finantial interest in the estate, but it is part of my duty towards his widow,and my two nephews, to help resolve this situation. Up to date, I suspect over £15,000. has been spent on legal costs and they are no nearer a solution.
As the deeds were in his name only, we know the "rules of intestacy" SHOULD have applied, and both children SHOULD have recieved approx £10,000 from the estate, when the intestscy rules would have applied. This part of the administration was not completed. The solicitors who have been involved since 1985, have connections with the solicitor who was, and still is, one of the administators of the estate.
Could the widow claim that she was a "joint owner" of the property in 1985 ?
The deeds for the house are still in my brothers name, so theoreticaly I suppose all his dependances have been living in a house they do not own. what I am trying to do, is have the house transferred into his widows name as the sole owner, and see that the estate is administerd as it should have been in 1985.
Who today would resolve this situation ?, is it that the solicitors who were the administartors at the time are at fault, and would they still be liable ? I have suggested to the family, that she should go to another solicitor because her existing one has a "conflict of interest" being connected to the administrator.


Any suggestions on who could help or who I could contact for advice ?

Bizarre. It appears that the estate may have been misadministered. There could be reasons for this but after this length of time it may be impossible to find out.

One approach may be for the beneficiaries who are entitled to the estate on the intestacy to enter into a deed of arrangement whereby a notional will can be written dividing the estate up in a mutually agreed way.

there is NO time limit for such a deed. The only time restriction applies where Inheritance Tax mitigation is involved, which states that this must be within 2 years of the date of death. Therefore, any deed will not be tax efficient but it will sort out the division of the estate, if everyone agrees. There is not time bar on a deed of arrangement on an intestacy (noting what I have said about IHT restrictions).

One approach might be to give the widow the right to occupy the house for life and for the entirety of it to then pass to the children on her death. This would be handy long term care planning too and to be blunt this could well work out to be a massive advantage to the family since if the house HAD been assented to the widow in the 1980s then it would probably be too late for her to gift it now because of the deprivation of assets rules.

See your solicitor to discuss this line of approach.

[CleverClogs]

Re: Probate

See your solicityor to discuss this line of approach.

And preferably not from the firm responsible for this cock-up.

[The Debt Star]

Re: Probate

Theres a couple of lawyers who post over here on wills - http://boards.fool.co.uk/wills-probate-51094.aspx

There are some here too.

[razor]

Re: Probate

Thank's for your suggestions, I believe by brothers widow is begining to accept that the solicitors who have been dealing with her case for the past 15years,(and charged for their services to the tune of £10,000+) have not really resolved anything over that time. I have advised her for years, to go to a more speciallized solicitor, as her presant one has conections with the one who supposed to have administered the estate 26 years ago.