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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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My brother is the named executor and trustee of my fathers

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My brother is the named executor and trustee of my fathers will in the UK.The specific devise is the bequeath of properties 55 andXXXXXto him.The two properties 2 Mount Pleasant and 33 esplanade to me.Residue . I give the remainder of my estate in the UK to my trustees to pay for the funeral, expenses for administering my estate in the UK. Any IHT tax or other duties in the UK, debts. To divide the balance equally between my children my brother , myself and my sister. ( My sister inherited land in NZ where dad lived)
In the UK my father had a Barclays account in joint names with just me, and also another Lloyds account in which the rents from the properties were paid into. My brother was also gifted a very valuable (£20+ K) gold coin.
My brother asked me to put both accounts in case they needed to be included in probate. In NZ he said I was to keep the £8K which was in the Barclays account because I had not been gifted anything. On my return from the funeral in NZ I withdrew £4K , leaving the balance. My brother then said I was not to touch this because he may have some expenses. So all expenses have been paid from the account. I was not informed in advance what these were , and had agreed to put the account in joint names with him, as he had claimed it would need to be included in probate. I found out when I received a statement he had taken £3000 to pay for his time, along with all other expenses. So the account is virtually empty.This account has not to my knowledge been included in probate. He has grant of probate , paid out the rents from the other LLoyds account to us both. All funeral expenses and tax was paid by his second wife in NZ where my father was buried.
My issue is, no proper executors account was set up, I have no idea what his expenses were? can he just pay himself £3000, as there is no charging clause in the will? he claims it has taken up a lot of time and he has saved the estate money, he has a demanding job , now semi- retired, but could easily have put the whole matter into the hands of solicitors should he have not wished to do it. The fact that the Barclays account was in my joint name for over 10 years with my father, does that not mean the account belonged to me? Because I allowed him to have the account in a joint name with me mean I lost all control of it? He has not given any information as to what was included in probate other than the agreed valuations of the property, and that the estate came to £481,000.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Is your brother a professional executor, solicitor or accountant?
Customer: replied 3 years ago.

No he is not. I would have said if he was.

Thank you. I appreciate that you would probably have told me if he was a professional executor but I do have to ask the question because we cannot assume facts.
He is not allowed to be paid even if there is a charging clause in the will is saying that a professional executor can charge. There may be a different clause that says that are non-professional executor is entitled to be paid but that would be extremely unusual. He is not entitled to charge for his time in that case unless the will says that he is, in his capacity as a non-professional executor.
He is entitled to expenses which he has incurred out-of-pocket but it is unlikely that would be a round £3000 and you are entitled to know how that figure has been arrived at.
In the will, your brother got the coin but it appears that you did not get anything to offset that. That does not actually give you the right to the £8000 in the bank account unless the will specifically said that you got it. It is unlikely that the executor would have the discretion to favour you over anyone else.
With regard to money in a joint bank account just because it is joint does not mean that the contents are joint. It is a joint mandate of the account but the contents of the bank account actually belong to whoever they belong to. It is the source of the money which is relevant. It very often happens that someone has all their pension paid into a joint bank account and a joint bank account is administered jointly with (for example) a son or other family member. The sun is entitled to administer the account but none of the money would belong to him in that case.
All the money in the bank accounts should be declared and included in the probate calculation.
Can I clarify anything for you?
Customer: replied 3 years ago.

Thank you for your advice. At what point am I allowed to ask for a breakdown of his expenses , given that probate has been granted, but not all properties, i.e deeds of houses have been distributed. Should the remainder of the Barclays account i.e the £3000 taken by him for his time, be refunded into the account, less his personal expenses . I have asked him politely to justify this , but he refuses to reply on this issue.

You can ask for a breakdown of his expenses at any time although he only needs to include them in the final estate account. It is always better for an executor to be transparent when asked for financial information to avoid raising suspicion that they are doing something that they should not do.
You are not entitled actually to see the will although that can be obtained from the probate registry once probate has been granted.
It is possible to do a partial distribution if, for example, not all the assets have been realised. This is very often the case if a house needs to be sold.
He is not entitled to be paid for his time from what you have told me of what the will says and therefore the £3000 should be refunded to the estate less his out-of-pocket expenses.
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