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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 22403
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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I am an executor of my mothers will and the other executor

Customer Question

I am an executor of my mothers will and the other executor is being obstructive in his role and stopping the administration of the will and grant of probate by not signing the forms. although insisting he wants to do the job. What can be done to remove him from this role?
Submitted: 3 years ago.
Category: Law
Expert:  Stuart J replied 3 years ago.
Are there only 2 executors?
Customer: replied 3 years ago.
Relist: Other.
It was a none answer the solictor says we have to wait to get enough evidence to go through a proceedure to remove him, will the WILL become invalid if it is not executed? I think we could get stuck for years?
Customer: replied 3 years ago.

The other executor is my ex brother-in-law. my mother left me as the main
beneficiary of her estate and neither of my two half siters are mentioned.
this brother-in-law is a retired GP articulate and wants to meet with me
alone but will not go and sign the papers at the solicitors. I want him
removed from the process but as my mother died on 1st Feb the solicitors
are saying we haven't enough evidence to make that happen. He thinks his
ex-wife should have some of the monies

Customer: replied 3 years ago.

Sorry I made a mistake my sisters are NOT mentioned. I think his ex wife is
looking to contest the Will

Expert:  Stuart J replied 3 years ago.




The
solicitor is correct that six weeks after death is too soon to make a court
application to remove the executor. In any event, it cannot be done by the
current solicitors because that is a conflict of interest and you would be
faced personally with finding another firm of solicitors. Some details of the
process are here, but it is most certainly not a do it yourself job. Here is
some reading for you http://www.wrighthassall.co.uk/articles/2010/04/13/removing-and-substituting-executors/

whether
the ex-wife has a claim or not depends on a whole variety of factors such as
whether she was dependent on him and indeed, whether they were still legally
married. There are strict timescales for contesting probate and administration
of an estate.



Meanwhile,
there is no reason why the current solicitor cannot write to the executor,
saying that give the current executor does not deal with the necessary
paperwork, there is a possibility that you (the other executor) would make an
application to court to have this one removed and replaced and he would be
liable for the court costs and in that letter, urge him to reply to any enquiries in a timely
manner.





Wills and estate admin can be contested on various grounds



1

If a person doesn't provide for dependents, children incl adopted children of
all ages and a spouse (but not step children unless they have been treated as
the deceased's own childeren) in a will it can contested by making a claim under the THE INHERITANCE (PROVISION
FOR FAMILY AND DEPENDANTS) ACT 1975.



Details are here



http://www.rollingsons.co.uk/The-Inheritance-Provision-for-Family-and-Dependants-Act-1975.shtml



2

Undue influence if it is thought that the person making the will had been "got
at" when drafting the will.



3

Or if, when drafting the will the person lacked mental capacity/didn't know
what he/she was doing



4

Fraud





There are strict time limits
for contesting will under 1 above of 6 months from death.



Claims under 2 or 3 above 12
months.



Claims under 4, no time limit.



http://www.probate.uk.com/how_long_contest_will.html



5



Promissory Estoppell. This is a
technical legal doctrine not used very often. It says that if anyone has been
promised something during the lifetime of a person and they relied on that promise to their
detriment
then they are entitled
to have whatever was promised. The classic case is indeed the young man on the
farm, who is told by the old man "don't go off to seek your fortune son, but
stick with me and work on the farm and I will leave it to you when I die,".



So the young man doesn't go off
to seek his fortune and stays and works on the farm and it turns out that when
the old man dies he leaves everything in his estate to the prize cow, Daisy or
his new girlfriend, who is 30 years younger than he is. In that case, the young
man having given up a future (to his detriment) on the basis that one day (he
was promised) the farm would be his and he believed it and relied on it, he can
get a court order that the farm is transferred to him. Such claims are not
cheap or quick to bring in do require a large burden of proof of the promise
and reliance to detriment.





Anyone can get a copy of a will
once it has been admitted to probate from HM probate registry, upon the payment
of five pounds.



Anyone can also hold up the granting of probate by entering a caveat at the
probate registry. At least, they will then find out if there is a will. The
entering of a caveat will certainly wake up any executors. Some explanatory
details are here;



http://www.anthonygold.co.uk/site/ang_articles/ang_articles_filing_a_caveat_first_step_in_contesting_a_will



If
there is no will the estate is distributed under terms of the rules of
intestacy



http://www.adviceguide.org.uk/england/relationships_e/relationships_death_and_wills_e/who_can_inherit_if_there_is_no_will___the_rules_of_intestacy.htm



Can
I help further?



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The thread remains open for us to continue this exchange



Stuart J, Solicitor
Category: Law
Satisfied Customers: 22403
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street Practice
Stuart J and other Law Specialists are ready to help you
Customer: replied 3 years ago.


Under the Meanwhile paragraph, how long should I wait before instructing the solicitor to make this type of court application?

Customer: replied 3 years ago.


What are the time limits for applying for probate? as the other executor could hold things up indefinitely?

Customer: replied 3 years ago.

How long have we got to apply for probate as The other executor will keep me wainting indefinitely?

Expert:  Stuart J replied 3 years ago.




I
don't know whether the other executor has done absolutely nothing whatsoever
and is ignoring correspondence or just being dilatory

I
would tell him that unless he responds with another two weeks. You will then
make a court application to having removed as an executor on the basis that he
is not acting in the best interest of the beneficiaries and you will asked the
court to award costs against him. By that stage, it will be two months and I
think that's not unreasonable







There
is no timescale for applying for probate. However, you will not get probate without
paying inheritance tax, if any, is due.

There
is a strict timescale for paying inheritance tax after probate is granted, which is six months.
If the estate is over £325,000 it would would be worthwhile bringing that to
his attention because the beneficiaries can hold him personally liable for any
penalties imposed by the revenue. http://www.hmrc.gov.uk/payinghmrc/inheritance.htm




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