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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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I do not trust my brother as sole executor of my recently deceased

Customer Question

I do not trust my brother as sole executor of my recently deceased mother's will :he has shown himself in the past to be unreliable, dishonest and generally obdurate. Is there anything I can do either to have him removed or to insist that he take out some sort of fidelity bond?
Submitted: 3 years ago.
Category: Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hi, thanks for your question. My name is***** can assist with this.

tdlawyer :

Do you have any evidence of wrongdonig on the part of your brother?

tdlawyer :

And also, are you a beneficiary in your late mother's estate?

Customer:

I am a beneficiary in my late mother's estate.

Customer:

with regard to evidence of wrong-doing I have a file detailing his appalling behaviour and inconsistenciewss and wrong-doing whilst he held power of attorney

tdlawyer :

Is probate being granted or been granted?

Customer:

He has not been granted probate yet. I do not know if he has applied (we are not speaking)

tdlawyer :

OKay. It may be possible if he is the executor appointed by the court after probate, under s.50 of the Administration of Judtice Act 1985. If gives the court a general discretion on whether the appoint and executor or substitute an existing executor. Obviously, it will consider all facts of the case, and improper condctof a dishonest nature whilst handling your late mother's affairs, will certinly be a factor taken into account and would, I expect, be sufficient to result in the court substituting that person as an executor.

tdlawyer :

So it is possible to do what you seek to achieve, although you will likely have to go to court to achieve this if your brother is named as executor and will not simply walk away from the role before he starts administering the estate.

Customer:

I don't mind going to Court BUT equally I don't want an extended and expensive process. From my experience the Courts seem unwilling to remove appointed persons. His first response when told of his mother's death was to point out that he is my late mother's nominated Executor (which I already knew) rather than expressing any sadness.

Customer:

I know that in Scotland there is a vehicle for taking out a fidelity bond, is there anything similar in England

tdlawyer :

That is an unusual reaction, and I can see why this gives you some concern. You're right, in that you need something of a good reason though to get a substitution. If you can resolve this by persuading him to renounce,and if he doesn't, there will be a legal battle, that's the best you might be able to do without actually foing to court.

tdlawyer :

No, nothing like that really, you can't force him to pay money over to abide the proper administration of the estate.

tdlawyer :

IS there anything else you would like to ask me about this?

tdlawyer :

If not, can I check that you're happy with the service this evening please?

Customer:

Have not spoken to him for four years. I know of no-one who might persuade him to renounce. If I were to express my concern to the Probate Office, can they not insist he take out a bond - given his previous performance as an Attorney I would seriously question his ability to carry out the task of Executor, even his solicitor has, I gather, given up on him because he has been such a waste of space

tdlawyer :

No, you would simply have to seek the substitution or appointmen of another executor.

Customer:

How do I go about that? Can it be done as a written application to the Court or is it a matter of visiting the RCJ?

tdlawyer :

You would need to make a formal application to the court. My suggestion would be to get a solicitor to help you prepare that application. It's not like issuing a claim in the small claims court for a sum of money - it will be contested high court proceedings.

tdlawyer :

Really, you should get a solicitor to do this for you.

Customer:

I appreciate that: I have dealt with my own applications before (including contesting his Attorneyship) so I would not be baulking at that prospect. Have you any idea of the costs involved? Are we talking tens, hundreds or thousands?

Customer:





I appreciate that: I have dealt with my own applications before (including contesting his Attorneyship) so I would not be baulking at that prospect. Have you any idea of the costs involved? Are we talking tens, hundreds or thousands?






tdlawyer :

Costs really do depend on what happens, and how long it takes to resolve. You could be looking at £5,000 to £10,000 or so I would have thought on average.

Customer:

My problem is that the evidence, although compelling, is to a largely circumstantial - everybody, including his Solicitor, knows that her is a conniving little s**t but that would not have any real bearing on the case. Obviously if I conducted my own application I could keep costs down .All I am looking for is justice and re-assurance that a relatively small estate will be administered with 100% integrity.

Customer:

I will get back to you tomorrow - I need clarification but am too tired to continue

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