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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10226
Experience:  I have been practising for 30 years.
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My mother suffered a debilitating stroke December 2013, and

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My mother suffered a debilitating stroke December 2013, and end Feb 2014 my older brother & sister agreed to her coming home as medics said they could not do anything more for her. Brother & sister insisted we care for her as a family of 6 children despite the remaining 4 siblings working full time. It was an impossible task as she could not do anything for herself and even had to be spoon fed. I said all along I didn't want to and consequently didn't, and mum died October 2014. Grant of probate is showing on the register as some time July 2015 and her property sold January 2016. I'm a residuary beneficiary; a six way split. Now June 2016 as solicitors have been deinstructed some 12 months once probate granted, still no distribution of mum's estate. I rang my brother to put some questions to him but never got the opportunity. He shouted at me "it'll be sorted when it's sorted" and hung up. His wife is still angry with me because I refused to be a carer for my mother. I fear now they may try to avoid paying me my share as feel they could "bill" her estate with their time in caring for her, to effectively swallow up my inheritance. Is that a real possibility and if not, then surely now her property is sold funds should have distributed by now?

Who were the executors appointed in the will?

Who instructed the solicitors?

Who deinstructed the solicitor and why?

I can tell you that if you refuse to care for your mother and they took it upon themselves to do that, they are not entitled to be paid for that except out-of-pocket expenses and they are not entitled to deduct anything from you in respect of care they provided and care which you did not provide. They may be annoyed about it but that’s the situation.

Customer: replied 1 year ago.
The Executors were my brother and sister and her now deceased Husband albeit at the time of her (my mother's) death, her Husband (i.e. not my father but her second husband) was still alive and in a care home. (Mother had made provision for him in her will in that he could stay in the property until his death whereupon he would receive the monies raised from the sale of the chattels and a death policy which she had running for him, however that clause of the Will is now no longer as he died 24th December 2014 some 10 weeks say after mum and as I mentioned earlier, mother had had to put him into a care home as could no longer cope herself). Granted that bit of info. is now by the by as we had no sooner buried mum and Christmas etc. was upon us and his death.So, that left my brother (the guy I telephoned) and my eldest sister. There are then a further 4 sister of which I'm the youngest so we're all mum's six children whom she wanted benefitting from her estate. Mother used the same solicitors her whole life long for her divorce, property and then ultimately her Will so in terms of "who instructed Solicitors" they had the Will so I'm guessing in effect Mum instructed them? When I telephoned the Solicitors last week given the passage of time and no forthcoming information from the family (I don't exist in the now two remaining Executors' eyes) I was informed by the Fee Earner with conduct that she was de-instructed. I can only assume therefore it was my brother and sister, i.e. the two Executors. As for the reasons why, that I cannot answer and the Fee Earner kept repeating to me over the telephone that she needed to be careful what she said. I did consider approaching her on a fee paying basis but can only assume I'm conflicted out - however they would have a good idea as to the value of mother's estate given that they were still instructed up to Grant of Probate?I did suggest, when we had our family meeting in May 2015 due to the drain on time for my other siblings' time why we couldn't use mum's asset (her home) to pay for better care for her. We were told by the medics (or rather I was told via older sister) that mum needed 24 hour care. Her care wasn't even in my opinion bordering on the good enough spectrum. I felt my brother and sister were not savvy enough is the only word I can think of in that even at what appeared to be the 11th hour did they apply for POA and that was in the July/August when mother really was have more and more bouts of dementia. POA was never granted in time from what I heard but they still had to pay the Solicitor's bill. On the day of her actual death (12.10.14) I got a telephone call from a brother in law to inform me, after two hours or more being at mum's home, I dare ask the question when is the Doctor coming to pronounce and no-one had even called him. Goodness me there wasn't even an undertaker onboard and yet she was by this time weighing in at about 3st from her fit and healthy 8. It was awful. No funeral arrangements communicated so this is no shock to me in getting the response from my brother and whilst I repeat, never got the opportunity to ask any questions he just launched in clearly assuming I was ringing up to "chase the money" what I had wanted to ask was is there still a valid claim from mother's 2nd Husband's children (rumour has it there was but as far as I know has not come to anything) and b) I've only just found out the Solicitors were de-instructed - is there a problem.It's reassuring to know about their care time not being able to be charged to Mum's estate; granted out of pocket expenses is a given.Sorry for the essay.Hope I've covered all what you asked albeit wrapped up in the history of the matter.

You are correct that the solicitor could give you very little information without breaching client confidentiality. You may be a beneficiary of the will you are not a client. In fact, beneficiaries do not have the right to see the will although they can get a copy from the probate registry once it has been admitted to probate.

You would not therefore be able to instruct that solicitor on a feepaying basis but what you might want to do is go and see another solicitor. There appear to be 4 beneficiaries who don’t know what’s going on and hence, if you divide those costs between you it will not hurt quite so much. I’m suggesting that because clearly, your brother is taking no notice of you.

The solicitor can write to the executors threatening an application to court to remove them for failing to act in the best interest of the beneficiaries and failing to administer and distribute the estate. With regard to removing them, it’s not an easy job and courts do not remove executors lightly because they have been slow. You would have to prove that they had done something untoward failed to do something which they are under a duty to do. Hopefully, the threat of the application to remove them and the threat of substantial court costs against them will be enough to spur them into getting rid of this and distributing the estate.

Can I clarify anything for you?

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Best wishes.


F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
I won't be going down the route of trying to derail them in terms of their Executor status but I do wonder, given their apparent anger toward me (Executor Sister not spoken to since I declined to care which I hasten to add was due to my medical condition at the time which didn't help and no empathy shown there) and now brother's contempt for me (I'm ignoring his silent assassin of a wife's comments) how will we ever know what was the total of mother's estate. The property I know how much that was sold for. As for the other siblings, again very estranged family and one appears to be very close to Exec. Sister so do not trust her & in any event have proof she lied to me on at least two occasions. I'm bit bewildered if property sold still no distribution. You've reassured me they cannot effectively bill my inheritance portion away on care fees. I guess ultimately I will have to sit tight a while longer then.Thank you so much and of course will do the rating.
Customer: replied 1 year ago.
Sorry I forgot to ask, surely there are timetable whereby monies from a deceased's estate must be distributed? Matters surely cannot be left to drift indefinitely? I'm a secretary and for a while worked in family law; divorce papers have to be answered to within an allotted time or there are other measures in place to show service was attempted and all tries exhausted; ancils have a timetable set down by judges and therefore measures in place if petitioners/respondents don't answer and consent orders adhered to. Perhaps given mum's biggest asset was her home and as that sold was of 15 January 2016 (can view that information off the Rightmove website), the funds are now in client account - whoever acted in terms of the sale. Granted utility bills should now all have been submitted and paid and all other kind of bills like that, but were now some 5 months in and nothing. My phone call to my brother was only sparked when I contacted who I thought were the Solicitors acting on mum's estate to find out they're not! Perhaps if they (the two Executors) are doing a DIY job it will take this length of time. However, I've scoured the internet and yet still cannot find anywhere to tell me there is a time limit - unless I've just not been thorough enough. Are you able to answer?

Surprisingly as it may seem, no there are no timetables for distributing the deceased’s estate. The executors have to be reasonable in the timescale and reasonable has no definition. Complicated estates can take months or even years whereas more simple ones can be done and dusted in 6 months.

There are strict time scales for contesting wills and probate but not for the distribution. However if the property completed on 15 January the money would have come in on 15 January and even if there are other assets, the details of which have yet to come in (not that unusual) there was no reason why the executors could not do an interim distribution (part distribution) so that the beneficiaries have some money while they wait for the final reckoning up.

For arguments sake there is £200,000 in the estate and they don’t know the extent of the liabilities, they could perhaps distribute £100,000 or even more, keeping the rest back to pay liabilities.

To be honest, it should be quicker if the executors are doing a do-it-yourself job than of solicitors are doing it quite simply because solicitors have other jobs to do whereas this is the only thing the executors of got to do with regard to the estate and they will be keen to get the money. What you will very often find is that executors also beneficiaries and who don’t need the money themselves, will be slower.

Customer: replied 1 year ago.
I am surprised at the timescales; mother's home was I would have thought the last and biggest asset to deal with so now sold, I'd have thought her ISA accounts and savings accounts etc. would have been wound up already. You've reassured me so fingers crossed I actually sleep tonight given my phone call was Saturday and not slept sound since. I know what you mean with solicitors having other jobs to do; I'm a legal secretary again & no, did not want to ask at work in the W&P Dept. I'm transport - d/driving, speeding and all manor of sorts. Thanks again. I'm very grateful to you.

With the majority of properties which get sold subject to probate, there is usually someone champing at the bit to get it and hence, soon as probate is granted they usually complete very quickly. It’s the gathering in of other assets which usually takes longer.

I’m glad to help.

Best wishes