Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
Please accept my condolences for your double loss and I'm sorry to read of your difficulties with your brother
have you discussed with your solicitor simply going ahead with an application for grant of probate without your brother? If not I will with your permission expand on this option.
No we haven't. The solicitor didn't offer this as an option as he acting for all 3 of us.
Please expand on this. Thank you
Are we chatting now?
Hello - I am so sorry. For some reason the fact that you had replied didn't show up until just now. I do apologise. I am available all day. In the meantime I will expand on the above.
Thank you. In meantime I have received another letter from my brother via the solicitor making more demands before he will sign probate. He is constantly holding us to "ransom" that he will only sign probate if ...... this or that is done. Is this the duty of an executor or he is not allowed to do this surely. I quote" release of parents ashes mandatory "before he will settle estate.
As you will be aware executors authority derives from the will itself but not all exectors in the will have to apply for probate. It is possible for one or more executives to apply for probate on their own initiative reserving power to non-applying executors.
Does the other not have to reserve in writing?
I suppose the solicitor wont do this because he represents all 3 of us?
In other words you can simply make an application probate without your brother. There are some caveats. You must give notice to your brother of your application and he may seek to place a caveat with the Probate Registry in order to prevent the application from being granted but this requires rapid and active steps from your brother. You may judge that he will not act or will not act in time and given the relative lack of costs in making the application it could be a worthwhile tactic.
Oh he would definitely place a caveat when receiving notification. How much notice would he get?
There is no need to have something signed by your brother in order to make the application. This is only required where an executor is to renounce his role entirely. all that is required is a notice sent by you or your solicitor that an application has been made and power has been reserved to your brother. As above, I do not pretend that this means that your brother cannot continue to make trouble. If he is extremely motivated, as referred to above, he can seek to delay or prevent the application from being granted and even when the application has been granted, he can make an application for a further grant of probate in his name alongside your own but the point is that it places the onus on him to actively take steps with the probate registry which he may not do due to lack of motivation or acumen. It can therefore be a useful tactic to employ given the alternative is complete stalemate or a costly court application.
Notice would be just a few days depending upon workload at the Registry.
If he places a caveat then the matter does not end there. You can then subpoena him to provide evidence to justify the caveat. A caveat cannot be sustained following a subpoena for evidence without justification. He must be able to show a basis for challenging the will(s) - i.e. that he has a better claim or that they are invalid in some way based on a test of law. If he cannot show a valid ground for caveat the Registrar will remove the caveat.
if he also applies and gets probate how would the estate be administered? I was LPOA and have all the details of bank accounts etc and so does the solicitor. Could my brother cause harm legally if we got probate and divided estate up?
The alternative is that you make an application to the court under section 50 of the Administration of Justice Act 1985 to remove him as executor. Under section 50, the court has discretion to appoint one or more new personal representatives or to terminate one or more of the executors appointments under the will. Caselaw has shown that when exercising its power under section 50, it a court can take a pragmatic approach, to take into account the beneficiaries’ views and the interests of the estate as a whole.
Is applying to court very costly as the estate is small?
If your brother is motivated and prepared to make formal applications for probate himself, then of course the above tactic will not help and a s50 application will be the approach to take though your solicitor is right to warn of costs of this route.
It would be disproportionate in terms of costs potentially if the application is defended particularly by your brother given the size of the estate hence why is is worth looking at whether you can administer using an aggresive application for grant as above in the first instance. Unless you know for sure your brother will make formal applications to seek to scupper this approach it can be worthwhile in attempting.
The main costs in court applications is solicitors and barristers costs if the application is fully defended. They will run into £5000 most likely at least and can be more if there is lots of evience to consider.
Is the notice sent by ourselves when applying or the Probate office when receiving the application?
They will often though not always be awarded against the estate though it is possible to seek costs against your brother if you can show that the application is only neecssary by virtue of a vexatious position.
Yes the notice must be sent by you or on your behalf byyour solicitor to your brother when applying
I would assume then it would be better to use another independent solicitor to do this as the current one would have ny brother as his client as well?
with regards ***** ***** insurance, this is almost certainly held in trust and therefore outside of your parents estate and will not be dependent upon grant of probate. Depending upon the type of trust, you may be able to explain the position to the trustees and persuade them of the practicality of agreeing payouts to everyone but your brother though the trustees are likely to have significant discretion in the matter.
The Insurance company have said they need all 3 signatures before releasing the funds.
Ref your last post if he is acting for all the executors including your brother you will need to consider retaining another solicitor - though if te estate is simple, you can make the application yourself if you wish.
Ref insurance, this may be their final position but it can be worth explaing the position to them as if the insurance is held in a discretionary trust they may have discretion in this respect. I would not hold out enormous hope but it can be an effective approach in some instances
The estate is just one bank account for my father and the insurance for my mother's(which does not need probate).
If we apply ourselves is there a standard letter to send to my brother?
Yes just a moment....
Once the estate has been distributed is there any come back my brother can use inlaw?
You can use this notice - obviously replacing appropriate names for the letters in the notice.
To E F of
Take notice that:
1. A B of died on the day of 20 having made and duly executed his last will and testament dated the day of 20 ;
2. C D of and you the said E F are named as the executors in that will;
3. The said C D is applying for probate of that will with power to be reserved to you the said E F to apply for double probate.
Dated the day of 20 .
Providing you distribute the estate strictly in accordance with the will your brother would only have a claim if he could challenge the will or claim that he was financially maintained by your parents and they failed to adequately provide for him in their will. To guard against such claims, you may choose to wait 6 months after grant of probate before distributing as such claims must be made within six months of the date of any grant of probate after which they are out of time
Thank you. I think this may be worth a try after consultation and agreement with my sister. It has just been so tiring and trying over something which should be so simple.
Situations such as this are very distressing not least because they are so personal aside from financial implications. I hope the above approach allows you to make some headway.
If I can assist any further as the situation develops please do not hesitate to revert to me
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