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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 14305
Experience:  I have been practising for 30 years.
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Firstly I'm in the UK, I'm (67) and co-Executor with my

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Good evening. Firstly I'm in the UK, I'm (67) and co-Executor with my elder brother (74) to my late Mother's Estate. My brother is suffering from mental/depression issues and has left all the Estate handling to me and he has signed papers in agreement wherever necessary. We have just Completed on the sale of Mum's house and my brother, without reference to me, has instructed the conveyance Solicitors to not pay the proceeds of the sale into our joint Executors bank a/c despite having signed the contract of sale upon which the instruction for such a payment is recorded. I know of no reason why he has done this and it will prevent me from disbursing the bequests as per Mum's wishes. Is the witholding of these monies legitimate? And can the conveyance Solicitors allow him to do so despite both of us having signed the contract of sale paperwork?
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: Sorry, with regard to what exactly?
JA: Where is the house located?
Customer: In the UK.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No.

Good morning. I will assist with your question - be aware this is an email not chat service therefore i maybe delayed in replying.

who are the beneficaries?

when did he do this? and no idea why?

and solicitor did this without consulting you?

Customer: replied 9 days ago.
Good morning, my brother and I are the only 2 residual beneficiaries aside from 6 stated bequests.

The conveyance Solicitor informed me on Friday, the day of Completion of the property sale, that they had been told by my brother not to release the sale funds into the Executors' bank a/c. No idea why. My brother has neither been in contact nor notified me of any reason nor requested my permission for his action, the Solicitor simply advised me that the funds were not being released because my brother told them not to.

So, the solicitor is simply sitting with this money waiting to hand over the sale proceeds subject to a signature from both of you?

Is your brother now simply ignoring you?

Customer: replied 9 days ago.
I have not approached my brother about his action as I wish to establish some legal basis regarding where I/we stand before so doing, which is why I am on here.

The Solicitor will hopefully call me today. There has been no suggestion (yet) that they need signatures from my brother and I in order to release the funds.

My point is that both my brother and I have already signed the 'contract of sale' within which it was stated that we agreed to funds being transferred to our joint Executors bank a/c.

My question is, given this already written, signed and agreed instruction, does the conveyance Solicitor have the right to withhold funds simply on the verbal instruction of my brother? Surely any change to previous instructions requires the approval of both Executors so the Solicitor should have no grounds NOT to release the funds.

As your brother is clearly not acting in the best interest of the beneficiaries, then your remedy, if he will not play ball, is an application to court to have him removed and for the costs of the proceedings to remove him, to be awarded against him.

You may find that a strongly worded letter from a solicitor threatening a court application and an application for costs, may focus the mind without actually the need to get to court.

I can tell you now that removing and replacing an executor is not by any stretch of even a very vivid imagination, do it yourself job.

As it is, the solicitor is actually doing nothing wrong by taking an instruction from one executor and in default of agreement from both of you, he is actually doing the right thing to simply hang onto the money.

The contract sells the property and it’s been sold.

Dispersal of the funds is something else and if your brother originally agreed the funds were to go into the executors account that’s fine but he can always withdraw that agreement.

Whether the solicitor does need the approval of both executors (which in my opinion he does) or not is not actually relevant because the fact remains that the solicitor is withholding the funds and you really only have 4 courses of action:

{C}1 a complaint to the solicitor and his complaints Partner

{C}2 a complaint to the Legal Ombudsman

{C}3 take the solicitor to court

{C}4 threaten to remove your brother as executor.

 

The quickest is going to be 4 if the threat works although if the threat doesn’t work, none of them are going to be quick and it’s highly likely that 1 & 2 are going to be the quickest but in my opinion the most unlikely to succeed.

Can I clarify anything else for you?

 

I am happy to answer any specific points arising from this.

 

Please take a moment to look at the top right-hand corner of the page and rate my service by clicking one of the stars at the top of the screen.

 

You may need to login again to use the rating service. Although it says "rate to finish" it doesn't close the thread and we can still exchange emails.

 

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It doesn't just give me a pat on the head! It's what gets me paid!!

 

There is also an experts incentive scheme whereby the more 5 star ratings I get I do actually get a pat on the head!

 

All you need to do is press Submit.

 

Thank you.

 

If you still need any points clarifying, I will still reply because the thread does not close.

 

Best wishes.

 

FES

 

Customer: replied 9 days ago.
Thanks for this, very helpful. However ...

... might I be so bold as to suggest that you've rather contradicted yourself and confused me by saying that (a) the Solicitor is doing nothing wrong by taking (and, by definition, acting upon) an instruction from one Executor and then (b) you say that in your opinion the Solicitor needs the approval of both Executors.

Surely one cannot have it both ways?

As for going down the route of removing my brother from his position as Executor, I get your point but we are so close to the end of the process I feel that all it would serve would be to cause, or heighten, a family rift that I am very much trying to avoid.

The funds must eventually be released but if the delay becomes prolonged then my preferred course of action will be firstly to insist that the Solicitor places the monies on deposit with interest due to the Estate and then follow your options 1 and 2 in that order.

PS ... Don't worry, I shall not fail to submit a rating.

I’m sorry, my bad.

I agree that it came out wrong.

The solicitor must always act on the side of caution and therefore it would not be unreasonable for him to take the instructions of one executor when told not to release the money but to insist on 2 executors when being told to release the money.

Removing him as an executor is of course the ultimate sanction and that could easily take 12 months you can’t beat your brother with a stick until he plays nicely and ultimately the only remedy, if the solicitors letter threatening to remove him doesn’t work, is to make the application.

 

Whilst not wanting to cause or heighten the family rift is admirable, and it is good that you are trying to avoid that, it seems that your brother couldn’t care less.

F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 9 days ago.
Indeed FES, your very last comment is not far wrong.

I've heard this afternoon from the Solicitor saying that she requires written confirmation from both me and my brother in order to release the funds, something of which I hadn't previously been made aware.

So it looks as if the delay and the potential of unnecessary obstruction courtesy of my dear sibling is going to be unavoidable and I shall just have to grit my teeth.

I've exhausted my questions so thank you for your valued professional input.

With Compliments of the Season.