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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11557
Experience:  30 years as a practising solicitor.
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Hello,Over 2 years ago my mother died leaving in her will

Resolved Question:

Hello,
Over 2 years ago my mother died leaving in her will an estate to be split 5 ways to each of her siblings. The executors were my oldest brother (David) and 2 older sisters. One of my sister has resigned from her role. My oldest brother is a bully, wants to be sole executor and will not co-operate to select a family solicitor to execute the estate
Unfortunately when my father passed away 15 years ago, my eldest brother (David) was responsible to carry over my fathers estate into my mothers. This was never done and due to his behaviour and untrustworthiness both myself and my closest brother (Mark) are now executors on my fathers estate along with David. He will not co-operate with any of us on anything and we want to try to force matters to bring this whole mess to a close.
Can I make a claim on my fathers estate in order to force the sale of my mothers estate or does my fathers estate need to be transferred into my mothers before anything can progress?
A complete mess, I know! Your advice will be greatly appreciated. Thanks.
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.
Can you tell me what is in each estate and the approximate value?
Customer: replied 3 years ago.
Good morning, my fathers estate requires myself and brother mark to sign a confirmation document to transfer £130k value into my mothers estate. My mothers estate is probably to the value of circa £400 - £500k estimate. There are no other asserts apart from the house that we all want to be sold as seen (apart from David) and the proceeds split 5 ways. It may be helpful to know that David is an Architect, extremely manipulative, has known litigation cases against him all through his working career and has deep financial troubles.
Regards
Expert:  JGM replied 3 years ago.
The difficulty here is that it is almost impossible to have an executor removed from office where he or she has been appointed by a will. There is no logical reason as to why your brother should not participate in the finalisation of your father's estate and then finalise your mother's estate and you don't say why he is being so difficult.
What I would do is this. One or more of your siblings, who are not executors, should be selected to raise court proceedings against the executors of each estate. The action is one of count reckoning and payment. What that means is that the beneficiary asks the court to make the executors produce an accounting of the estate and an order for payment of their legacy from the estate. This is more a vehicle to achieve an end, of course, as there are five beneficiaries in total. What the action will achieve, however, is a hearing in front of a sheriff who will then make such orders as are necessary to enable progress to be made towards winding up, especially when the sheriff is made aware of where the problem come from.
Before raising proceedings give the brother 28 days written notice to get his act together and cooperate. If he doesn't do so make it plain that the costs of raising litigation will be sought from him personally,
Hopefully that will bring him to his senses.
Customer: replied 3 years ago.

Thank you for this. For completeness, and being a co-executor on my fathers estate, can I raise the court proceedings on David or does it have to be a sibling that is not an executor? Does raising the court action require to be done through a Solicitor or can this be done by a visit to the Sheriff Court personally?

Thank you.

Expert:  JGM replied 3 years ago.
It would be better that the action is in the name of a non executor. A solicitor will have to be instructed as this action has to be drafted as an Initial Writ and is much more complex than, small claim or summary procedure.
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