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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12064
Experience:  30 years as a practising solicitor.
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My late fathers estate has been divided between myself and

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My late father's estate has been divided between myself and my 2 siblings. The estate consisits of funds over £30k approx. and his flat approx. value £40k. The funds were released to the lawyer dealing with the estate mid Oct 2013. My brother is currently staying in the flat rent free since Sept 2012. Dad passed away 27th Dec 2012.
The lawyer has said that he will release the funds once the flat is in the process of being sold. My brother has not moved out of the flat. The lawyer has said he has tried to contact him regarding vacating the flat. I have emailed the lawyer on a few occasions for an update on this situation. But he hasn't replied. we have all agreed to sell the flat.

Where do I stand legally regarding the funds and the flat?
Thank you for your question.

The lawyer can pay some of the funds out to the beneficiaries at any time. He will require to keep back money for fees and the costs of marketing the property but there is no real reason why funds can't be released now.

As far as the house is concerned he should be getting a Home Report done and arranging to market the property. However, he is clearly wanting to know that he can offer the flat with vacant possession and he can't do that if your brother is still in the property and not saying when he is moving out. If he doesn't the executors could be in breach of contract to any purchaser.

It is not the lawyer's responsibility to remove your brother from the flat unless he is an executor. The executors should be dealing with this and communicating with your brother.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 4 years ago.

I think we are the executors ie the 3 siblings. so how do we get him out of the house? my brother and the lawyer were to organise between them for the valuers home report. it was agreed by them both in September.

The lawyer has taken his interm fees as soon as the funds were released in October......

If the three of you can't agree, then the court would have to be asked to make an order for the sale of the house. There is no defence to such an application. The law is that if there are joint owners of a property and one or more wants to sell the court has to make the order, except where the house is a matrimonial home.

The problem is that the costs of such an action are high. You have to make clear to your brother that if he doesn't move out and if an action is needed the estate will look to him to pay the costs.

As far as the lawyer is concerned he is representing all of you as executors therefore he is a difficult situation and cannot take sides in this. That is perhaps why things have not moved on.