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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My brother died recently without leaving will and it would

Customer Question

My brother died recently without leaving will and it would appear I am the next of kin apart from my elderly mother. He didnt own property but ran what appears to be a one man business from shop premises. As far as I can make out there are outstanding debts. I just need some sort of advice as to what to do next in regards ***** ***** down the business and removing or selling off the equipment in the shop
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

Please accept my condolences for your loss.

to the best of your knowledge, from what you say, do you believe that your brothers estate is likely to be insolvent?
Customer: replied 2 years ago.

yes as far as I know

Expert:  Joshua replied 2 years ago.
Thank you. if this is the case, you would be best advised not to undertake any form of administration role. This is because administering insolvent Estates is not straightforward because you have to liquidate such assets as there are and pay off his creditors and there was a strict order in which creditors must be paid and in what proportions. If you fall foul of these rules and you can find yourself personally liable to any creditors who have not been paid what they are entitled to. Accordingly, there is potential financial risk to you without any financial benefit.

It is therefore likely to be best to leave the matter to the Insolvency Service to administer. Any interested creditor can make an application for an insolvency administration order which is in order presented to the court appointing an administrator from the government's insolvency service to wind up your brother's estate.

if creditors contact you or your mother, it is sufficient to advise that you are not administering your brother's estate and you suggest they consider contacting the insolvency service or applying for insolvency administration order.

If you are considering administering the estate despite the above issues, please let me know and I will be happy to give you further information in respect of the order that creditors must be repaid - though as above please consider the position carefully before uundertaking the role.

Can I help you with anything else or has the above answered your questions satisfactorily?
Customer: replied 2 years ago.

Thank you for your reply. What I am still concerned about is the property because rent is accruing on it at the moment. Can I have the equipment removed and put into storage although I do not have funds for this either

Expert:  Joshua replied 2 years ago.
does he have a lease in respect of the premises to your knowledge?
Customer: replied 2 years ago.

I am not sure about that - it may have been a 'gentlemans' agreement

Expert:  Joshua replied 2 years ago.
thank you. Any rent that accrues would be payable by your brothers estate. unless you, your mother or another family member has guaranteed the rent, the landlord will be limited in his claims to any assets contained within your brother's estate. If your brother's estate is already insolvent the best of your knowledge, then landlord will be limited to such assets as are available along with any other creditors of your brother. In this sense, from your and your mother's perspective, it is of little consequence how much rent accrues because the landlord cannot claim rents against you or any other person. Having said that, it would be courteous if you have not already done so to inform the landlord of your brothers passing in order that the landlord is not allow substantial rents to accrue which he may not be able to recover. Does the above answer all your questions or is there anything I can clarify or help you with any further?
Customer: replied 2 years ago.

Sorry to keep coming back to you but what about the machinery or equipment I believe to be in the shop. I havent actually been inside the shop as it is nowhere near local to where I live

Expert:  Joshua replied 2 years ago.
Not at all. These items will constitute your brother's assets. If you chose to administer the estate, these could be sold and liquidated for cash. However if your brothers debts will exceed the value of that machinery and any other assets he owns including money in bank and so on, the estate is insolvent and the above issues are relvant. obviously, if the combination of your brothers assets generally and the value of that equipment totals more than his total debts, then the estate is not insolvent and either you or your mother could relatively safely proceed to administer it. Your mother is entitled to retain any net balance from your brothers estate after his debts have been paid. if as you referred to above, your brother's debts exceed the total value of his assets including the machinery, then there is limited purpose and you attempting to recover the machinery because his creditors would simply claim the proceeds of any sale. In these circumstances, it may therefore be better to allow the creditors to procure the sale of the machinery in order to pay their debts by their seeking an insolvency administration order as discussed above. Does that make sense? Please let me know if any part remains unclear and I will clarify further. Is there anything else I can help you with generally or does the above satisfy all your queries?
Customer: replied 2 years ago.

Am I allowed to try and check out a couple of things this evening as I am at work at the moment and come back to you tomorrow if I have any further questions. As I understand it at the moment you are saying just leave things as they are and wait for creditors to act first - is that correct as I really dont want to get involved with it

Thank you for your assistance so far

Expert:  Joshua replied 2 years ago.
Yes of course. in summary, my view would be that if your brother's estate is insolvent (i.e. more debts than assets including the machinery) that there is no advantage to you in becoming involved and some potential financial risk in doing so and therefore it would seem expedient to leave well alone. If on the other hand, you determine that your brother likely has more assets entitlement debts then either you or your mother may decide to administer his estate, paying off creditors and paying the balance to your mother. If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. this will also save the threat to your account are prevented accidentally closing. You are most welcome to return to the thread at any time should you have any follow-up questions which I will be happy to deal with without further charge.
Joshua and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Thank you so much for your help today. I dont really feel in a position to administer the estate as such but I do need the local contact to confirm one or two things first before I make that final decision.

Regards

Maxine Barber

Expert:  Joshua replied 2 years ago.
I am glad I could be of some assistance.
Customer: replied 2 years ago.

Hi again

I am not sure whether it will be insolvency or not but am I allowed to do a stock take and put whatever stuff(!) there is into storage so that we can terminate the lease with the landlord please

Many thanks

Maxine Barber

Expert:  Joshua replied 2 years ago.
You can but you should not give notice to terminate the lease unless it is your intention to act as administrator. If you "intermeddle" in your brothers estate, you may not have a choice but to act as administrator. Rather you may consider limiting yourslef to advising the landlord of the situation and that it is unlikely that any familiy member would wish to take on the lease and thererfore suggest the landlord may want to determine the lease for non payment of rent and attempt to relet it because the estate is likely to be insolvent. This then leaves it to the landlord to decide what to do. It is unliely you would be able to terminate the lease against the landlords wishes anyway.
Customer: replied 2 years ago.

Hi again

Would the contents of the shop then become the landlords if there was non payment of rent. I can see I am going to have to take time off (llose money) and visit the premises

Expert:  Joshua replied 2 years ago.
The landlord is entitled to levy "distress" on any goods he finds in the shop to offset agaisnt the rent. ie. sell or keep the goods in part payment of rent
Customer: replied 2 years ago.

Thanks for all your answers. Just to clarify that I am understanding this correctly, I can move the contents into storage whilst we find out the true position of the estate and just advise the landlord of the position regarding tenancy

Expert:  Joshua replied 2 years ago.
You can but remember that if the estate owes debts the equipment can be claimed by the creditors so take care not to sell it or otherwise dispose of it. To my mind if the estate is insolvent it would be best left where it is because it will not benefit you or your mother but providing you make it availabel in due course to any legitimate creditor claims through the insolvenccy service moving it to storage is not a problem in itself.
Customer: replied 2 years ago.

Once again thanks for your help so far. I do not intend to dispose of anything, just maybe put it into storage for the time being

Regards

Maxine Barber

Expert:  Joshua replied 2 years ago.
A pleasure
Customer: replied 2 years ago.

hopefully one last question (certainly for today!) - does a solitcitor have to become involved or can I just notify all the relevant people of the situation

Expert:  Joshua replied 2 years ago.
You need not involve a solicitor to notify third parties.
Customer: replied 2 years ago.

Hi once again

I have since discovered there may be a small amount of money in a bank account (probably under £2,000). After hearing what other people have to say, do I have to apply for probate. However, I am talking in the dark here and have no real understanding of exactly what I am suppose to do after a death other than registering it/funeral etc. I have used the 'Tell us Once' service to notify some departments but really dont know what to do next (again lack of my own funds prevents me from taking to many steps) but dont want to get in too deep with anything

Expert:  Joshua replied 2 years ago.
You would not normally have to apply for probate for such a modest sum. Remember though if the estate owes more debts than assets it would be sensible to consider not getting involved as you could be personally liable if you do not deal with any assets there are under the insolvency rules. You can notify your brothers passing through the service you mention above.
Customer: replied 2 years ago.

Good morning

Each time I write, I hope it is going to be the last question. I have been asking questions solely to do with his business but do I combine any personal debts (if any) or is that something to keep separate.

Many thanks

Expert:  Joshua replied 2 years ago.
Unless his business was a limited company then his business debts will be dealt with together with his personal debts as he is liable for both types equally
Customer: replied 2 years ago.

Hello once again.

Since my last email I have discovered that there was a small amount of money in his sole trader business account. Can I use any of this towards payment of his funeral expenses or is there a different priority of payments.

Many thanks

Maxine Barber

Expert:  Joshua replied 2 years ago.
Hi there. I am very happy to continue to assist but I am reaching the limit of what I can do based on the original value of your question. I am always happy to respond to follow up questions and apply a loose "fair use" policy in this respect as I regrettably have to be able to justify my time economically. May I create an option to extend the Q&A time in order that I can continue to assist you? Might I suggest a payment of around £30 to allow for a number of further additional follow ups as they arise?