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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12179
Experience:  30 years as a practising solicitor.
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SITUATION I have been a co-Executor years (and co-beneficiary,

Customer Question

I have been a co-Executor for 3 years (and co-beneficiary, with my brother) to administer the Scottish estate of my mother. All Executry business is done, HMRC forms submitted, heritable assets sold and distributed, etc. All that is required, is that the Executors sign off on the accounts.
I paid for my mother's care prior to decease from my own pocket, and I have done all the work of looking after the estate property prior to disposal re obtaining Confirmation, running a small rural business based at the property until sale, dealing with a tenant, and preparing its accounts and the Executry account. I have received no recompense - but have reimbursed myself for specific outlays on behalf of both brothers (eg care home costs, funeral costs), and on behalf of the Executry (eg heritable asset repairs, grounds maintenance, tenancy costs) from income received by the business at the heritable property.
As this outline will suggest, accounting has not been simplet and straightforward, and the overall Excel covering all transactions runs to 40 sheets! Now my brother will take nothing on trust, has a bee in his bonnet and is challenging my historic expenses - both personal pre-decease, and on behalf of the Executry. He has engaged a solicitor (who I feel can only justify his fees by helping my brother find monies expended by me which can be contested) - but as the inheritance was very modest in the first place, and there is now a pittance remaining to be distributed, I'm loath to line up a solicitor myself in an adversial position, if it can be avoided. All this will do is needless expense and eternal emnity.
I have nothing to hide - but after all my unpaid work, I do not wish to expend more time, money and energy arguing over every invoice and cost - some of which are not and cannot ever be clear-cut anyway. Of course I have supplied copious copies of all accounts - both HMRC, all bank account statements, personal, pre-Executry, and Executry.
Am I: legally obliged to provide any or all original evidences relating to these accounts, on demand, whether personal or Executry? - eg any and/or all original invoices, emails from contractors etc?
Legally obliged to answer unlimited queries regarding entries on the accounts? And if not, how may I reasonably limit these demands? (the last time I sent an Excel spread sheet it came back covered in red ink and questionmarks!)
If my brother is entitled to sight of such evidences, I am loath to send them, as the consequence would inevitably be a deluge of questions and arguments. As a last resort, I could argue that I have had the expense of preparing them - he must now bear the expense of scrutiny, and I will send them to an accountant of his choosing. Can I make this a condition of making them available - the costs of such an audit over 3 years being a significant deterrent? Were he to take thi s ludicrous step, can I indemnify myself over any resulting costs - eg any new tax burden for the business which was within the Executry?
I have not received any costs myself for Executorship work, and nor did I claim income for my property attached to heritable property. If I find myself disadvantaged by his adversarial position and enquiries, can I now make a claim for my not-inconsiderable costs - eg obtaining Confirmation - which of course were costs I saved the Executry, and therefore my brother as beneficiary? Can I now claim my income from previously gifted property which contributed to the business within the Executry?
And were I to legitimately withhold further information demanded, or were we to fail to agree about such information which was provided, how would matters proceed if my brother continued to withhold formal approval?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Is your brother an executor?
Customer: replied 2 years ago.
Yes - my brother and I were nominated co-Executors by the Will, as well as its principal beneficiaries. Although communication has been difficult as he has insisted only on written communications, I have of course shared decisions with him regarding the disposal of assets, etc - and tried to seek approval for all decisions and any specific costs over £500 (consultation of which there is email evidence).
I therefore find it problematic that his solicitor asks for more information on costs "to which I wish him to contribute". They were joint costs to which he already agreed! I am not seeking contributions - my outlays have been paid back - I'm asking him to sign off the accounts. And having supplied accounts as noted, apart from original invoices, or contractors' emails, I have no other information!
Expert:  JGM replied 2 years ago.
Where is the money held? Is a solicitor involved on behalf of the estate?
Customer: replied 2 years ago.
Very little money is now held: proceeds net of costs from the combined sale of heritable assets, and a couple of personal appended properties (ie those previously transferred to the present beneficiaries as lifetime gifts to the two sons) were equally distributed to the two beneficiaries directly by the solicitor acting in the conveyance. (This was his only role). So there is now just a few thousand pounds, jointly held in the Executors' account (from trading at the heritable property prior to disposal), which if the draft Executry Account I have submitted is accepted, would be equally shared between the two beneficiaries as their last act as Executors.
Having acted in the convenyance of heritable assets, and discharged the proceeds, the solicitor acting for the Executors jointly in the sale has ended his role. No other solicitor is now involved on behalf of the estate or Executors jointly. My brother would not accept a shared solicitor previously - I found and offered a very suitable one, who was willing to play a bit of an implicit or unofficial arbitrating role, as well as conveyancing etc - but this was rejected, as we were never in accord, or good communication. He has engaged his own solicitor, as previously advised; so that he can communicate with me through that representative, and retrospectively challenge my conduct of pre-Executry expenses in support of my mother, funeral expenses, and Executry business after her demise, and challenge the accounts I have provided for all these transactions. I am not presently legally represented, as we are so close to ending the Executorship (as soon as accounts are approved), and I fear unnecessarily upping the ante at this very late stage. But I do feel the need and advantage of knowing my rights, duties, and the parameters I have for action (eg granting access to records), or for expenses claims for my costs (not for the money, but as a threat/bargaining ploy, to bring matters to a close). Most of all, my predicament is: (i) to finally wind up the estate, after 3 extremely stressful years, without further dispute; and (ii) to meet my obligations as co-Executor, whilst placing some reasonable boundaries on what I have previously experienced as remorseless and limitless demands, which can never be satisfied.
Expert:  JGM replied 2 years ago.
The executors are responsible for winding up such estate as there is at the date of death. Any pre death issues are strictly not relevant to the estate unless there is an allegation such that the executors should be recovering money due to the estate as at the date of death. Executors are entitled to charge expenses and these should be vouched. The executors can adjudicate on what is a valid expense and what is not. The difficulty you have is that the executors can't agree. That is a stalemate situation and the only remedy would normally be to have the court decide the matter. Where there are no funds in the estate to litigate that is not an option. as your brother has instructed a solicitor of his own, he has done that as an individual, not as an executor, as he can't bind the estate of give instructions on behalf of the estate without your agreement. As such any legal costs incurred by him would not come out of the estate but would have to be borne by him as an individual. i wonder if by making this clear to him you would persuade him to come to the table so that the final accounting can be agreed.
Customer: replied 2 years ago.
Thank you.
I may consider it unfortunate that his solicitor is at the table in his stead, since I lack representation of my own; or, as you say, fortunate, since the longer it takes him to agree, the more it costs him personally, whereas it osts me nothing but time. And also thankfully, and also as you say, the amounts are too trivial to justify litigation.
As previously advised, there are pre-death debts owed to me by him as son and beneficiary, and the fact that these are outwith the Executry is not really a help; since this also means that there is no formal framework for their agreement, discharge, and accounting. Or is there? What I have realised, reading your advice re the Executry, is that these debts (eg care home fees) were, in effect, NOT my brother's debts to me, but technically could be viewed as my mother's debts, and as, therefore, a claim on the Executry.
As regards ***** ***** concern - that an absurd amount o f my time has been and still could be taken up recovering evidences of costs on demand, and debating them, and how I might limit that demand - I find no advice in your response; only that "the executors can adjudicate on what is a valid expense and what it is not". In the absence of further guidance, I am going ot presume that there can only be a reasonable amount of time/effort requested, and that after that point, if he is still not satisfied, he would have to think about litigation - which is, as we've said, unlikely to be worth his while. In the absnee of a court's involv ement, how would matters proceed if we reached impasse; ie he continued to withhold approval of the accounts, or we failed to agree on monies owed?
Expert:  JGM replied 2 years ago.
The debts should have been included in the estate inventory. That they were not is unfortunate as your brother is now querying these. Similarly, there is really no remedy except litigation when executors fall out. I suggest that you write to the solicitor and make a summary of the claims being made and that if agreement can't be reached on the information which is easily available, your brother has a problem as the estate will never be signed off, there are insufficient funds to litigate, his legal costs will be his responsibility and perhaps a common sense approach would be more appropriate rather than a detailed audit.