I'm in a similar position, Dad died, joint executor with brother & sister.
Don't get on with brother, he won't send probate forms to me, he's already transferred everything to his home. He shares the same name as my dad.
I feel a battle ahead, I wonder if along with my sister we could dismiss him...
If you're right, can you point to the law that allows beneficiaries simply to dismiss an executor and appoint their own?
I can assure you that I have done this in the past (Husband died and the will made a bank the executors - I contacted them and said that the wife of the deceased did not want them to deal with the matter and they stood down and she applied for grant of probate.
Found something for you here .
If the beneficiaries feel that the fees are too high then point 5 will clearly come in to play. However the fact that they simply want to deal with such matters within the family should be sufficient reason.Executor or trustee disputes
Executors and trustees are commonly referred to as Personal Representatives (PR's).
Where there is friction between PR's or a beneficiary and PR, either party may make an application to court to substitute/remove a PR and/or appoint a judicial trustee.
The PR may not have acted in the best interests of the estate, failed to provide information or acted negligently. Other situations where people may find themselves at odds with a PR include:
- Disputes about the appropriateness of a particular investment or other administrative act.
- Cases where a PR has a personal interest such as being a beneficiary under the will or intestacy or being a director or shareholder of a company in which the state is interested.
- Misuse of power by PR under a power of attorney, where a PR is partisan eg a friend or adviser to one of the principal beneficiaries.
- If a PR is dishonest.
- Where a PR is unreasonable.
(4) Removal of executor. One possible solution is to apply for the executor to be passed over under section 116 of the 1981 Act even if he objects. The jurisdiction is exercisable by reason of any special circumstances which is a wide jurisdiction :
An alternative solution in such circumstances, which avoids the theoretical defect in the jurisdiction under section 116, is to apply in the Chancery Division for the removal or replacement of the executor as both executor and trustee under section 50 of the Administration of Justice Act 1985 and section 41 of the Trustee Act 1925. (Section 50 is primarily directed to cases where a grant has already been made, but is not in terms confined to such cases. The title of an executor stems from the will and there appears to be no reason why one should not invoke the section before the grant has been made.)
Last edited by MAC; 26-06-08 at 12:46.
I've got a similar case at the moment, bank are trustees on a will trust, charging far more per year for non advice than I do for advice, so we are seeking to 'retire' one trustee and appoint the children as replacement trustees.
The bank is happy to discharge their responsibility, the solicitor I am using is charging £250 plus VAT although even the solicitor says most of this is compliance costs rather than the advice.
I had a very similar situation, in as much that my brother had been actively excluded from my nan's estate shortly defore she died. So he lodged a caveat on the will, and then buggered of abroad
The bank were her executors, and conducted the whole thing appalingly.
18 months later we finally got probabte, simply because my brother died (so the caveat died with him)
Up to then the bank were worse than useless.
They then charged the estate £52k for the probate work, based on a % of the estate value. I got the estate £17k of that back. The file (which I still have) is about four inches thick with correspondance
Suffice to say, I learned a bit about probate over that time
We are in similar situation. My mother recently passed away having had a will drafted back in 1981 naming two solicitors from the firm drafting the will as Executor and they included a clause allowing them to help themselves to reasonable professional fees from the estate.
One of solicitor has died but unfortunately the other is alive. I phoned him to ask whether he would revoke his nomination. With music blaring in the background, he asked me two questions a) what the estate was worth & b) to send him a copy of the will.
He replied quickly saying that he was happy to take the appointment up & shortly after that sent me another e mail notifying me of the firm of solicitors that will do teh work. They are writing to me to quote their fee for their work (which I presume will be under instruction & reporting to the chief crook - the Executor with me supplying the firm of solicitors the contents of the file I have prepared ready for this).
The will is very simple leaving the estate divided equally between my sister and myself - the only two relations of my mother. My sister and I are in very close agreement of not wanting this parasite or his firm to do the work, we would far far prefer to do put my mum's affairs to rest between us in a joint effort with help of a local solicitor if needed. In fact we have already drafted the IHT form & probate application & got all the correspondence ready.
Having read your piece, we am waiting for to see what their terms are cost and time - wise to see whether we can accept it or make an deed of family arrangement to change the will or apply to the court.
Sorry for all the longwinded intro - why wouldn't it be better for us to destroy the original will or not be able to find the original & remove the grounds for the Executor to be involved if intestacy rules would give us the choice over handling the estate & come to the same outcome in terms of our equal shares? Would destroying the will be foolish or ill advised?
If everything goes to mum why the fuck do the bank even have to be involved? tell em to fuck off.
Destroying the will would be both foolish and ill advised.
On filing the Probate Application and IHT205, it becomes a matter for the public record.
IIRC the Probate Application asks why the executors aren't asking filing for probate (http://www.hmcourts-service.gov.uk/c...rms/pa1a_e.pdf) Section A A6
The executors have certain legal duties including obtaining probate. In your case as the whole estate goes to the spouse there is no liability so this should be relatively simple. The form they have sent is probably the probate questionnaire which they have to complete and submit to HRMCE, once they have probate then they should only do such administration as requested by your mother. It would appear to me there is no property to sell etc so the bank could only claim a fee for completing probate. They also have to provide you with a detailed account of the money that they have incurred. Fairly simple estate and bequest so a days work to complete probate form (the better you fill in the questionnaire the cheaper it will be!) and the probate fees would be reasonable. Anything else go to the ombudsman.
In England so long as all the beneficiaries agree (those named in the will!) you can apply to the court for a variation of terms (including the executor) which I suggest your mum does (or you do on her behalf) if you don't trust the bank. That's all you need to say - done a long time ago, no longer live locally would prefer to have it done by someone local. You don't need it to be a solicitor etc.
If your dad had various investments and pensions the executor does all the writing to them to sort out the residual payments etc which is more work.
If your mum wants someone else to do it then she should just apply to the court in writing to get this done. She doesn't need the bank's permission.
Go and see the CAB they'll be able to advise - or pay for a 30 mins with a solicitor (take the details of the will with you) - - get the forms and get it moving before the bank do ANYTHING. The clock or meter is ticking!
I can't help with your executor problem ( my dad died intestate which, in our case made things simple ) but, if you haven't already, I suggest you advise your mum to change her will now, as it would be even more difficult for you to sort in future since her named beneficiary has died before her.
& people complain about US lawyers... however, over here ANYONE can be executor...
Anyone can be an executor here too. The issue is that people make wills appointing people to be their executors without much knowledge about the task they are asking them to take on or the financial implications
I did my dad's estate when he died as executor as it was very simple - everything went to mum so all I had to do was get the valuations and get probate. When mum died although I was the executor I got a solicitor to help me. She managed to reduce quite significantly the amount of inheritance tax I would have paid as she knew what I could claim against the estate. I lost a sale of the house because the IR messed up their bit of the probate so I was able to offset all the costs of that and the resale against the inheritance tax liability as she got them to admit it was their fault. Also she chased all the little bits of pension and widow's pension and some insurances that I would have missed in the paperwork and closed everything down for me. Because I lived 200 miles away she also paid all the bills on the house while it was empty. She produced a detailed and itemised account for every penny of expenditure and an account of how her time had been spent and fees for that. The money she got in was put in a client account and interest accrued on it while she was waiting for probate too and she did the conveyancing on the house sale.
One of the things you can do is to make mirror wills so you leave your estate to your spouse while they are alive and then say how you want your half of what is left when the second partner dies to be distributed. Then when the second partner dies the executor can apply to HMRCE for BOTH inheritance tax allowances (Darling changed the law on this about 3 years ago to make it transferable). You do however have to apply it is not given automatically - though they can't refuse the Govt dodge is that most people don't know and so don't apply. A solicitor or professional executor will know exactly how to do this. It is really important though that the wills are written in a way to allow this - worth the £250 to get a proper will writer to do them.
Do you have any evidence that the bank won't discharge their role as executor at a reasonable fee and professionally? If you do then I think you have a strong case for asking for a variation to the terms of the will (it's quite a simple process). I have just done one for a friend whose daughter was left a flat by her stepfather but the daughter has aspergers and can't manage this so we've had a court order to vary the terms so that we can sell the flat and use the money to set up a disabled person's trust to give her income for life from the proceeds. It really wasn't that hard
Holy thread revival.
Well to update on our situation. It took over 2 1/2 years for the solicitor to complete the disposal of my mum's estate and then he charged over 4 1/2 times what the law society said he should have. When challenged he made up letters and phone calls and billed for time he never spent, including time whilst he was on holiday. He just took this money from my mums estate without billing us, which I consider theft, but the police weren't interested.
It was finally settled earlier this year when the law society forced him to settle for considerably less, but it still took a further 6 months of the law society threatening him (slowly) before we saw the money. We are currently pursuing him threw the small claims court for other expenses and interest, backed from help from the law society.
Just to update you.
After an uncomfortable weekend fearing the worst, I resolved to phone our unwanted Executor and just ask him if he would renounce his appointment. I intended to say that it was reasonable for my sister and I to have be responsible for closing my mother's affairs with teh thought that I might have to argue that he was being unreasonable in NOT allowing us to do it.
It was too much. I was careful to start by not wanting to convey any offense to him but that is where my plan collapsed as emotion overcame me trying to articulate the request and reasoning. I found it particularly hard to say the words that meant most to me like "like is what my mum would have wanted".
The solicitor interjected, "let me interrupt you there, who was it you said has died?" he said " let me convey condolences to you, there is no need to go any further, I have no problem in principle to renouncing the role, I will put the form in the post to you tonight".
I felt sorry to have expected the worst. He was brash and did give reason to fear the worst but thankfully, he was very human in the end. I admired his decency.
Perhaps a high street bank would look to sting a member of public & perhaps there are unscrupulous solicitors too but my advice is to try to treat them as though they are people & you might be lucky as I was. & if you are not, I would reckon that you would at least have established some demonstrable grounds that they are acting unreasonably which, I don't know, but I hope a court would support. Of course in this case I have a benefit of meaning the world to me to take the role on & not have a stranger with no connection to us doing it.