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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33276
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My joint executor will not allow me access to the deceased's

Customer Question

My joint executor will not allow me access to the deceased's financial documents that he has collected from the deceased's flat despite several written requests made to him sent by registered post so as to make sure he signs for the letter. I have informed him I wish to make application for Grant preferably with him as a join application. I have already applied for a Caveat. I have informed him that I will be visiting his home to collect all the documents this coming Thursday, which he has now agreed to, but should he continue his obstruction to whom can I apply to for directions, court orders, search warrants, and is all of this enough to make application for him to be suspended/discharged as an executor ? Im also worried about any of the cash and jewellery and other other valuables have been removed from her flat as part of his clearance (without my permission or knowledge) as well as any cheques received and not yet cleared through banks.
I live in Brighton, will I have to go to London (High Court, Family Division) ?
Can I apply in the 1st instance ex parte for all of the above orders & I know I have to draft orders - where can I find sample orders to use ?
Submitted: 1 year ago.
Category: Law
Expert:  Clare replied 1 year ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Why have you applied for a Caveat?
Have you considered jointly instructing a solicitor to act given the difficult relationship between you?
Clare
Customer: replied 1 year ago.

I have spent the last 30 years in the administration of justice in civil and criminal courts but not in probate matters.

My Aunt who is the deceased specifically asked me to be her Executor.

My research suggested that I should apply for the Caveat when I found out that only one executor need apply and sign for a Grant.

In view of my co-executors ability thus far to side line me, by not allowing me to see her financial documents, by clearing out her flat, the day following her death, by showing confidential financial documents to a 3rd party family member without reference to me or my permission to use 3rd party as an advisor. I feel duty bound that I must take urgent steps for directions from the court on the way forward asap.

I have spoken with a firm of solicitors who informed me despite being experts in probate that they knew of no process to apply for directions in this kind of situation.

Expert:  Clare replied 1 year ago.
Hi
May I ask your respective relationships to the deceased and the likely extent of the estate?
Who are the main beneficiaries?
What about an independent solicitor to deal with probate?
Clare
Customer: replied 1 year ago.

Hi Clare,

My relationship with the deceased is she is my late father's sister and my god parent. I am 59yrs old. My co-executor is her step son 75yrs old from a marriage very later in her life, her husband pre-deceased her.

The main beneficiaries are her step son and his family and daughter and her 3 children who are all about 13-15. Estimated to receive a flat valued at £160k + monies £100k + 3/5ths of the residue. Step-son co executor has let slip that the estate is in the region of £375k ish.

There was a 3rd executor a Solicitor but he has died and the law firm have said they do not now deal with Probate cases so have renounced the 3rd Executor from the picture.

As said previously I spoke with some so called Probate expert Solicitors who said they knew of no process to assist me with.

Further research by me of the spirit of s25 Administration of Estates Act 1925 suggests that I should write out a report letter and send out to all the beneficiaries as part of a protection package of both executors, the estate etc.

For a beginner to this subject I think I have done ok upto now. I have received in the post from HM Revenue & Customs a set of the documents to fill in for Inheritance Tax and they seem very straight forward but you do need to be organised and have all the right papers and documents in front of you. And of course I don't have any papers or documents so Im stuck !

You should have by now enough background information. Can we now proceed to what can be done and where one has to go Probate Registrar in Brighton or a High Court Judge of the Family Division in London.

Thanks

Expert:  Clare replied 1 year ago.
Hi
Last questions, and my apologies I should have asked it earlier - when did your late Aunt die?
when you refer to a daughter do you mean her daughter or yours?
Clare
Customer: replied 1 year ago.

Died 7th January 2015

Im single and unmarried. Step son's daughter - my co executor.

Expert:  Clare replied 1 year ago.
Hi
I am sorry but i have to be honest with you although I know that you will find it difficult
There is NO action you can take in ANY court at this stage - and there will never be any question of "search warrants"
Indeed I have to be honest and say that at present it is your behaviour which is more likely to be at issue for a court and you who could face being removed as Executor
It would appear that you are also trying to deal with the Estate entirely separately from the other Executor - the very same accusation that you are making against him.
You have filed a Caveat entirely inappropriately - you BOTH have to apply for the Grant TOGETHER unless one of you is willing to have Power reserved.
The way forward is for you to have a meeting and agree a way forward - not for you to demand the paperwork do that you can deal with the matter.
better still you could agree to jointly instruct a solicitor to deal with probate so that you need only have the bare minimum of involvement with each other
By all means write to the Beneficiaries - however since they appear to be the other Executor and his immediate family members I am at a loss to understand what you think will be achieved.
You are at the very earliest stages of probate and suggesting unnecessary and expensive court action at this stage is precipitate to say the very least
I am sorry to have been so blunt but on the basis of what you have said here (which I accept may not be the whole story) your actions would be seen as controversial to say the least
Please ask if you need further details
Clare
Customer: replied 1 year ago.

Hi Clare

Thanks for your opion.

I have stressed to my co executor right from the start that I wanted to do the job together as a team and to help and support each other throughout the entire process. He initially wrote to me saying "thank you" and "yes lets do that".

I have asked quite a few times now to visit his home for a chat about planning a way forward, setting up accounts, sharing out the jobs that are required to do all of which have not been agreed to. I have said to him that we have to do this carefully and in a proper manner with a paperwork trail that we can produce if necessary. If coming to him is not convienant then lets make other arrangements and/or visit me instead.

In one of his rare emails to me he talks of the stress and strain of it all and of a more recent death of another family relative and I have again repeated all my offers to help etc.

His daughter who has been asked to draft an IHT 400 which I think would have been a good idea to do, if she is so adept at completing such forms, but I would have liked a chance to just check his figures and paperwork and to discuss valuations etc before drafting the IHT400. I have to sign the IHT document with my co-executor and I will be unable to do that if I can't verify the figure work etc and I can't do that without access to the financial documents, valuations, etc. I would like to take away with me all documents/paperwork and to do this carefully rather than a rush job and then report back to my co-executor either yes thats fine or no there's a query or question I have which requires some more research on. Isn't this all part of due diligence ? I don't want to sign the IHT form and find out later we errored.

My co-executor is 75 years of age and I know he has had heart health issues recently including a dementia scare, and so I have renewed my offer of help, but this is a two way process. Otherwise there is no point in having me as a co executor because I am not ever going to sign a legal form without reading it and making sure its as correct and true as it should be.

The caveat may be an incorrect application, but on the basis thus seen, his actions to try and dispose the deceased property and effects the day following my Aunt's death and not waiting for the Grant of Probate, I am concerned that nothing else disappears to.

Expert:  Clare replied 1 year ago.
Hi
For clarity then.
His daughter has prepared the forms and you are being given all the paperwork so that you can check it, is that correct?
Are there any beneficiaries who are not members of his family?
Clare
Customer: replied 1 year ago.

Yes

But I would like to do my research for my aunt's accounts myself as well just to make sure everything is listed.

My brother and his two adult children (both just turned 18) me, and my aunt cleaning lady - thats all.

The last time I saw my Aunt was on Dec 25th 2014, when she was a lot better and looking forward to leaving the nursing home and going back to her flat a few days after Xmas. She let it be known to me that she was going to change her will. But circumstances over took her.

Expert:  Clare replied 1 year ago.
Hi
Are you a Residuary beneficiary and do you have any reason to think that you will not be allowed to review the paperwork?
Clare
Customer: replied 1 year ago.

Hi

No my brother and I just get a fixed sum of £15k each. My co-executor gets £35k and his wife gets £15k. His daughter gets £15k, and her husband £15k, the co executor's brother and his wife get £20k each - sadly both in hospital seriously ill in their 80's, co-executor will get the £40k as they have no children. My brother's two children, now adults, receive 2/5ths of the residue.

Co-executor gets my aunts flat and contents, provided he signs a note saying he is responsible for all the legal costs, insurances, utilities, council tax, land registry and fees due under the lease. I have asked him to sign a receipt and discharge for the estate to have on file, but he's not done so yet. In default of no receipt will says flat net proceeds of sale will go into the residue account. Its this flat he has tried to sell, I thought the estate agent was doing just a valuation, until he said when was it to go on the open market at which point there was a quiet moment.

The will was written in 2010.

I've been asking to see the documents since the end of January, on the basis that my co-executor and I were going to work as a team. The longer the time has gone on without me seeing the papers and arranging a meeting, the more Im beginning to wonder what the problem or issue is. The flat going up for sale with estate agents without Probate Grant I thought must be a mistake or mis-understanding so gave benefit of the doubt for. But in view of the info that the estate may now have a total value of £400k Im wondering how that is broken down as my Aunt was always telling me how hard up she was, as far as I know she only kept a very small amount of cash in her flat, all my Kindle books I got for her subscriptions were paid by cheque back to me. Im supposed to be getting the Kindle as a momento but Im told it can't be found at the moment. The flat when I last visited it had been cleared out by co-executor and other family members. I asked if an inventory had been made but never got an answer to that one yet.

Expert:  Clare replied 1 year ago.
Hi
Who gets the other 3/5ths of the residue?
Clare
Customer: replied 1 year ago.

I mentioned the 3/5ths of the residue in an earlier message above, Im sure you could guess - the co-executor's daughter's 3 children (2 are 13y, 1 is 18y).

The 2 younger children's legacy will go into a trust to be administered by the will executors until they reach 18. (The other 3 children are all 18 now).

Expert:  Clare replied 1 year ago.
Hi
My apologies I had missed that
Will your brother's children support you in your concerns?
Clare
Customer: replied 1 year ago.

Yes - but I will answer your question, this way:

My brother's children are 18, Robert is at Uni of Bath 2nd year studying Economics, German, Statistics & is looking for his placement 3rd year in a financial institution forecasting risk. William is at 6th form college doing A levels in Physics, Maths, Japanese.

I would say they are both a young 18 without much life experience. But certainly are eager to achieve the highest marks in their respective subjects, although William has always been the more arty person and I rather expect him to do something in the arts - drawing, film productions etc.. William has not applied to any university's or colleges for Sept 2015 start and is intent of taking a gap year out with travel high on his list most likely to NZ where we have family and Japan.

I have talked to them both with there parents present, my brother who is an auditor/accountant and there mother who is a nurse.

My judgement of our conversations is that like me they are all wondering what's going on with the co-executor and why on the one hand he says he wants help, and says that openly, but then does everything on his own ending in just presenting me with the finished job that he expects me to just sign off on.

My co-executor's father was a career Captain in the Army. He liked everything to be just so and if not he would do it himself on his own. I guess that some of those ways of working have rubbed off on his 75 year old son.

Expert:  Clare replied 1 year ago.
Hi
The fact remains that this early in the process the other executor has in fact done nothing wrong at all
Once you have collected the paperwork you will have a much better idea of what is happening.
It is too early to invite him to sign anything regarding the property - and of course you are correct whilst it is not too early to market the property - but there can be no sale until probate has been obtained, however since he is to receive the property there seems little harm in his having done this
At this stage the watch word is wait.
Review the documentation that you get and only then decide if there is cause for concern
Clare
Customer: replied 1 year ago.

All being well Im due to go see my co-executor Thursday morning at the aunt's flat instead of his house which would be closer, will let you know sometime after then as to what happens or not happens. Thanks. Paul

Expert:  Clare replied 1 year ago.
Hi
That is fine
Clare
Customer: replied 1 year ago.

I was given a box of papers, not sorted out or in files, so its going to take me a while to sort out.

What happens to a legacy, where the mother to who it is gifted dies before the testaor but leaves two sons - does the legacy go 50:50 to the sons or back in the residue ?

Expert:  Clare replied 1 year ago.
Hi
That depends on the relationship between the Testator and the mother; and more importantly on what the Will says
If the Will makes no provision as to what should happen and the mother is not the child or grand child of the Testator then the gift simply falls into residue
Clare

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