Contentious Probate - Help Appreciated

[neversay]

This question below is from a very good friend who I encouraged to seek advice here but can't post a new thread yet as a 'newbie' (although he will follow-up on replies). If anyone here can help point him in the right direction on how to handle the following situation it would be sincerely appreciated:

- an uncle named me as sole executor on his will that states that all his 'estate' goes to myself, with cash amounts to my two young children. The will makes no explicit direct mention of the property he lived in for 56 years or any chattels.
- he was divorced 35 years ago and his ex-wife's name was NOT originally on the title deeds in 1965, but only appears as a joint tennant via a deed of gift in 1976, which was then changed via a notice of severance to tenants in common in 2011.
- no mention of the property was made in the divorce arrangements.
- his ex-wife’s nephew has now changed the locks to the property and provided me with no keys so, as executor, I have no access.
- they are also claiming they are the legal owners and as such they will now take over all matters pertaining to the property, as they say the ex-wife is the sole living owner. I thought as Executor it would be my responsibility to pull together all the assets. I have not yet provided them with a copy of the tittle deeds or any other documentation as I don’t know where I stand legally, plus I don’t want to do anything that might potentially prejudice my interest at a latter date.

His ex-wife is still living although her nephew is pushing to also get a share of the house (if not the whole). I am trying to find a suitable lawyer to ensure the executor duties are met but as a widower with two young children the outcome has a big effect on our family and meeting my uncle's expressed desire to leave the house to my family (which was my Uncle’s wishes). I am also unclear what I can and cannot do without consent from the ex-wife, or what they can and cannot do without my consent either.

I would really appreciate any guidance people here could give on how to proceed in this situation. Thank you.

[Gerry557]

I think that not giving you access as executor is probably illegal. As executor it is you duty to secure the deceased property. You might want to consider changing the locks your self.

Then it is a bun fight as to the legality of the issues mentioned. They may have a case, that you as executor need to deal with and I think its part of the probate for you to sort.

You might have to involve the police if the other party keep interfering.

[DrFfybes]

Presumably the Will was made after the divorce as this was in 1975? If not then AIUI the ex wife is treated has having died upon divorce so only gains if explicitly mentioned.

However, after the divorce the house was not split nor sold, so there seems some sort of agreement was in place at the time. As the house was made Tenants in Common in 2011, her proportion/share of the property should be mentioned in that process. The Deceased's Estate only includes his share of that property, she does not inherit the entire property.

Therefore I believe the Nephew is acting illegaly in excluding the Executor from the property you partly 'own'.

No doubt CK will be along shortly with Chapter and Verse, but I think given the actions so far your friend needs legal advice and quickly. A letter explaining the legal situation to the Nephew would be recorded, and he is probably acting on something he read on the internet

Paul

[monabri]

You need to get a solicitor involved. I believe tbe nephew has acted illegally.

p.s. illegally changing locks.. well, that will not go down well with a solicitor! I'd actually call the police, say you are the executor of a will ( documents to prove) and ask them to investigate why nephew has entered the premises and changed locks!

[Dod101]

In this sort of situation, the executor needs legal advice asap. It seems that at the very least the estate owns 50% of the house so how it can it be that the nephew feels he has the right to take over control of the property? Do not wait for CK or anyone else for advice (however helpful that might be) and I would not at this stage at least involve the police. That would just be an unnecessary complication.
Find a solicitor the executor can trust and do that today!

Dod

[AsleepInYorkshire]

This question below is from a very good friend who I encouraged to seek advice here but can't post a new thread yet as a 'newbie' (although he will follow-up on replies). If anyone here can help point him in the right direction on how to handle the following situation it would be sincerely appreciated:

- an uncle named me as sole executor on his will that states that all his 'estate' goes to myself, with cash amounts to my two young children. The will makes no explicit direct mention of the property he lived in for 56 years or any chattels.
- he was divorced 35 years ago and his ex-wife's name was NOT originally on the title deeds in 1965, but only appears as a joint tennant via a deed of gift in 1976, which was then changed via a notice of severance to tenants in common in 2011.
- no mention of the property was made in the divorce arrangements.
- his ex-wife’s nephew has now changed the locks to the property and provided me with no keys so, as executor, I have no access.
- they are also claiming they are the legal owners and as such they will now take over all matters pertaining to the property, as they say the ex-wife is the sole living owner. I thought as Executor it would be my responsibility to pull together all the assets. I have not yet provided them with a copy of the tittle deeds or any other documentation as I don’t know where I stand legally, plus I don’t want to do anything that might potentially prejudice my interest at a latter date.

His ex-wife is still living although her nephew is pushing to also get a share of the house (if not the whole). I am trying to find a suitable lawyer to ensure the executor duties are met but as a widower with two young children the outcome has a big effect on our family and meeting my uncle's expressed desire to leave the house to my family (which was my Uncle’s wishes). I am also unclear what I can and cannot do without consent from the ex-wife, or what they can and cannot do without my consent either.

I would really appreciate any guidance people here could give on how to proceed in this situation. Thank you.

I'd suggest that a letter is sent by the Executor confirming they have denied access by changing the locks and giving a set of keys. The letter should also explain that as Executor of the will your friend is going to take legal advice and hold them responsible for all the costs associated with this action.

Then get hold of a solicitor and take legal advice

AiY(D)

[Clitheroekid]

I'll approach this as if the OP is the person asking the question, as it makes it easier.

Firstly, don't bother calling the police. Although changing the locks is certainly contentious it's far from criminal activity, and from what you've said no criminal offence has taken place. Consequently, the police will (for a change!) be quite justified in refusing to get involved as "It's a civil matter".

Furthermore, even if the police do speak to the ex / her son all that's likely to do is raise the temperature and obstruct any sensible discussion.

From the information given it seems that your father and the ex owned the property as tenants-in-common, so she has a legal right to occupy the property. As things stand you don't have any right of occupation, as your father's interest has not been transferred to you. However, as executor of his Will you do have the right - indeed, a duty - to protect and preserve his share in the property.

The will makes no explicit direct mention of the property he lived in for 56 years or any chattels.

It doesn't matter. Most Wills are like this. Your father's share in the house, together with his chattels form part of his residuary estate, and as you say you have inherited his `estate' then they will devolve to you.

they are also claiming they are the legal owners and as such they will now take over all matters pertaining to the property, as they say the ex-wife is the sole living owner.

They are presumably unaware of the notice of severance, or are choosing to ignore it. Although the legal title is now vested in the ex the beneficial title is (or will be) vested in her and yourself as tenants-in-common, presumably on a 50/50 basis.

She therefore needs to be made aware of this in writing ASAP.

His ex-wife is still living although her nephew is pushing to also get a share of the house (if not the whole).

I can't see that she - still less he - would have any claim to your father's share in the house.

On the face of it, therefore, you are entitled to half the value of the house.

You don't say whether or not she's actually living there, which would be a material fact, but if she isn't I'd suggest writing to her not only pointing out the tenancy-in-common, but also saying you want to put the house on the market ASAP to take advantage of the spring selling season. If you feel that's too aggressive you could instead say that you need to have the house valued for probate purposes (which is true) and that you will therefore need a set of keys to facilitate access (though obviously this would not be the case if she's actually living there).

You can send such a letter yourself - it doesn't need to come from a solicitor - though it would probably be sensible to obtain some specific legal advice fairly soon.

[Property48]

Thank you for all your responses.

-I am unable to fulfil my legal obligations as Executor to my Uncle’s estate as I have been denied access to the house by them changing the locks (and not providing me with a set of keys). I don’t know what they may be doing inside without my consent, or whether anything has been taken

-I would like to put the premises on the market asap and so to this effect obtained 3 valuations for their consideration. They repeatedly said they would get back to me last weekend with a response and a proposal but now say they need more time and have given me no timescale. I would like to instruct an estate agent asap to put the empty house in a property auction (as there is land too with development potential), but I suspect the ex-wife / nephew will make me an offer. I firmly believe the auction method is the best way to proceed, as it truly tests the open market. I suspect they are going to refuse consent to instructing any estate agent unless I accept their offer instead.

-Who is responsible for taking the lead with the sale? Myself as the Executor to my Uncle’s will, or the ex-wife as the remaining living ‘tenant’. Surely I automatically take over my Uncle’s tenant rights plus I have a legal responsibility as his Executor too?

-They are also asking me for house insurance details, utilities etc so they can then put everything in the ex-wife’s name. I have sorted insurance, utilities etc already, and am wary giving them any information or documents which potentially may then be used against me at a later date. Obviously if legally I have to provide this information then I am happy to do this

-The house is now empty

-The Will was written after the divorce, there is no mention of the ex-wife in the will and no mention of the house in the divorce proceedings

-My Uncles’s name alone is on the title deeds. Not only did he buy the house himself, but has paid ALL utilities, house maintenance etc for the last 57 years. 11 years after the house purchase there was a deed of gift to make them joint tenants, subsequent divorce, then 25 years later a Notice of severance to make them now tenants in common.

-I was happy to sell the property and automatically send her a cheque for half the sale value (less costs). However as they have acted so appallingly and shown my Uncle no respect (the funeral was only 2 weeks ago) I now wish to investigate whether she has any claim to any part of the house at all

[Property48]

Btw following all your advice I’ve spoken to a couple of solicitors with a view to instructing one tomorrow (to help answer the above questions).
Thanks again for your help, and if anyone has any further thoughts it would be hugely appreciated

[Clitheroekid]

I would like to put the premises on the market asap and so to this effect obtained 3 valuations for their consideration. They repeatedly said they would get back to me last weekend with a response and a proposal but now say they need more time and have given me no timescale. I would like to instruct an estate agent asap to put the empty house in a property auction (as there is land too with development potential), but I suspect the ex-wife / nephew will make me an offer. I firmly believe the auction method is the best way to proceed, as it truly tests the open market.

Whilst it's fine to put the house on the market I don't agree that a sale by auction is at all the best way to proceed, mainly because you are massively limiting the pool pf potential buyers. In particular, you are eliminating the majority of people who need a loan to buy the property. Whilst you may be lucky, it's a gamble, and in general terms an auction will not achieve the best price.

It's also risky to go ahead with a sale before you have a grant of probate. The sale proceeds would be held in trust by the ex, but your ability to act as executor is extremely limited without a grant. Although in strict legal terms you are entitled to act many people with whom you are dealing, such as banks and lawyers, are unlikely to accept that you have legal authority to act without a grant.

-Who is responsible for taking the lead with the sale? Myself as the Executor to my Uncle’s will, or the ex-wife as the remaining living ‘tenant’. Surely I automatically take over my Uncle’s tenant rights plus I have a legal responsibility as his Executor too?

Neither of you has priority, any more than a husband and wife do when selling a jointly owned property. It has to be carried out by negotiation and agreement.

My Uncles’s name alone is on the title deeds. Not only did he buy the house himself, but has paid ALL utilities, house maintenance etc for the last 57 years. 11 years after the house purchase there was a deed of gift to make them joint tenants, subsequent divorce, then 25 years later a Notice of severance to make them now tenants in common.

As you refer to title deeds I'm assuming the title is not registered at the Land Registry. If he lived there for 57 years this is quite understandable. However, unlike a registered title the title deeds are extremely important. It would be quite easy for the ex to remove the deed of gift from the bundle, just produce the death certificate and sell the house without you even knowing! Whilst this is hopefully only a theoretical risk you should ensure that the deeds are held by a solicitor that you're both happy to use for the sale of the house.

I was happy to sell the property and automatically send her a cheque for half the sale value (less costs). However as they have acted so appallingly and shown my Uncle no respect (the funeral was only 2 weeks ago) I now wish to investigate whether she has any claim to any part of the house at all

It's not a question of whether or not she has a `claim' to part of the house - she's a joint owner of it, so she's legally entitled to half the equity irrespective of her conduct.

[Property48]

-Who is responsible for taking the lead with the sale? Myself as the Executor to my Uncle’s will, or the ex-wife as the remaining living ‘tenant’. Surely I automatically take over my Uncle’s tenant rights plus I have a legal responsibility as his Executor too?

‘Neither of you has priority, any more than a husband and wife do when selling a jointly owned property. It has to be carried out by negotiation and agreement’

What if we can’t agree a way forward?
I’m convinced they have an ulterior motive and want to buy the house and land off cheap to me, so that they can then realise the development potential themselves

[DrFfybes]

What if we can’t agree a way forward?
I’m convinced they have an ulterior motive and want to buy the house and land off cheap to me, so that they can then realise the development potential themselves

That can be dealt with in the sale. It is not uncommon for houses with large gardens to have a clause i the sale whereby any profit realised by the buyer due to developemnt can be clawed back by the previous owner. Often called Uplift clauses.

Paul

[Clitheroekid]

-Who is responsible for taking the lead with the sale? Myself as the Executor to my Uncle’s will, or the ex-wife as the remaining living ‘tenant’. Surely I automatically take over my Uncle’s tenant rights plus I have a legal responsibility as his Executor too?

‘Neither of you has priority, any more than a husband and wife do when selling a jointly owned property. It has to be carried out by negotiation and agreement’

What if we can’t agree a way forward?
I’m convinced they have an ulterior motive and want to buy the house and land off cheap to me, so that they can then realise the development potential themselves

The bottom line is that for all practical purposes you are a joint owner with the ex, and you are therefore in the same position as any other joint owner of land.

The ex can't force you to sell your interest to her, and if you are completely unable to reach agreement as to how the land should be dealt with then ultimately either of you can, as a trustee, apply to the Court under the provisions of TOLATA (Trusts of Land and Appointment of Trustees Act 1996) for a judge to decide what should happen.

[Property48]

The ex-wife says at the moment I don’t own half the house until Grant of Probate is obtained. And so I have no authority to do anything until I get probate - accordingly all utilities, house insurance etc need to be in her name. Is that correct, or do they have another agenda? I don’t want to give them anything which may potentially prejudice my interest in any way at a later date.

The house is now empty.

Thanks

[Property48]

Who has authority to deal with a house (currently empty) when 1 of the 2 tenants in common has died? Namely do utilities, insurance etc now need to be in the remaining living person’s name or can they be left as they are in the name of the person who died but paid all the utilities etc for the last 57 years? I have already informed the insurers the house is empty and also updated the utility companies but the ex-wife says she needs all the details of these and will now take over everything. I don’t feel comfortable with this.

As Executor to my Uncle’s will what authority do I have with regards the house until Grant of Probate is obtained? The ex-wife says I am not half owner of the house until Grant of Probate has been received. Is that correct? I am my Uncle’s Executor and the sole beneficiary. I am suspicious, and feel the ex-wife has another agenda.

I don’t want to give them anything which may potentially prejudice my interest at a later date.

Any ideas how long the Grant of Probate process is currently taking once it has been submitted online?

Any thoughts on the above would be massively appreciated. Thank you

[DrFfybes]

Any ideas how long the Grant of Probate process is currently taking once it has been submitted online?

For mum's non IHT estate but involving a property (so using form IHT 405 plus several sub-forms) it was submitted on 30 Nov. Probate document was issued on 21 Jan.

I expect there was a slight delay due to Xmas closure.

Paul

[AsleepInYorkshire]

Hi P48,

I'm not a legal person.

I can tell you some bits though

1. As an executor you have a legal requirement to act in the best interests of the beneficiaries. As far as possible and please, please forgive me for being Captain Obvious, stay on good terms, if at all possible with those who are now seeking to "take control". It's not going to be easy, I know. But I want to remind you that no matter how others around you behave, you have been entrusted by your late Uncle and he's chosen the right person to act as his executor. The two most important things in this situation, in my somewhat humble opinion, are firstly, look after yourself. Secondly if you find the process is having a negative impact on your health, find a representative which could be a legal person or someone who is foremost interested in your well being and can support you. They may be able to help with cutting lawns or even arranging to sit with you whilst you talk to legal people, for example.

2. You are your Uncle's executor. If in your opinion your uncle would accept or has spoken to you verbally about his wishes regarding the utility bills before he died I'd suggest you follow his wishes or the path you feel is of best interest to the beneficiaries. The simple solution is to keep the utility accounts in your Uncle's name until probate occurs as there will be standing charges to pay from his estate. I don't think you are required legally to support the other parties demand to transfer the utility bills to their name. Obviously worth checking though. However, if they want you to do it that badly why not let them go to the cost and expense of sending you a "solicitors letter"?

3. There's seems to be a clear signal from the other beneficiary as to an agenda regarding future worth of a building plot[s]? As executor you do need to value the property - ask a local estate agent for some numbers - they may be able to help with the value of any "building land" included within the property.

Your a good person and I'm sure your uncle will be greatly missed. He has, though, left you with a final gift, which was clearly his choice. Try not to worry about the "noise" being made by the other party. Whatever you do will be right. Your Uncle would want you to enjoy his gift and put it to best use in your future life. I'd celebrate that and more importantly your Uncle's life and the cherished memories. Everything else is just "noise" and you don't have the time for that. This is your life, not someone else's to control.

My Mum died in December last year. Please forgive me for my terminology, but the entire process has been way beyond anything I could ever have imagined. Fundamental and appalling failings by the NHS, Mum's care at home, Mum's care home, Local Authority Care Support, The Funeral Directors and a sibling and aunties and uncles on my Mum's side who have not respected Mum's wishes and have caused me emotional distress I would have preferred they didn't. All this whilst dealing with my own health issues. I've hardly had time to grieve. Indeed I've driven round to Mum's twice now, for a cup of tea, and as I pulled up I've remembered she's not there anymore.

Look after yourself and please let me stress once again - whatever you do will be right.

Take care, my thoughts are with you and you family.

AiY(D)

[Loup321]

... do utilities, insurance etc now need to be in the remaining living person’s name or can they be left as they are in the name of the person who died but paid all the utilities etc for the last 57 years?

I think bills could be in anyone's name, if they are prepared to pay them.

I have already informed the insurers the house is empty and also updated the utility companies but the ex-wife says she needs all the details of these and will now take over everything. I don’t feel comfortable with this.

The ex-wife does not need the information or your consent to take over the utility bills. I took over the bills for a flat where I am the landlord, when the previous tenants moved out. No problem at all. There was one supplier (well online chat agent) who wanted me to take over the debt of the previous occupier, but when I telephoned they said that was not correct.

I don’t want to give them anything which may potentially prejudice my interest at a later date.

I don't think them paying the bills would automatically give them any claim to anything! Otherwise tenants would have a claim on houses owned by their landlords, which is not the case! Even insuring one's own contents is absolutely allowed. Not sure on buildings insurance, as the tenant would not benefit from it, but either you or the ex-wife would benefit from it (as joint or potential joint owners), so either or both of you could take out this insurance.

The only thing I would be wary of is double insuraning. If you and the ex-wife both have cover, some policies will reduce the amount they pay out in the event of a claim when they find out other insurance is in place. However, in a house sale, the seller needs to insure the property up to the date of completion, and the buyer needs to insure the property from the date of exchange, so there will usually be a short period of double insurance. I don't know what happens if they are unlucky enough to have a claim in that period.

Sorry it's not a legal answer, and I haven't addressed any of your more complicated questions. Others will be better placed to help with those.

[stewamax]

The ex-wife says at the moment I don’t own half the house until Grant of Probate is obtained
I have no authority to do anything until I get probate - accordingly all utilities, house insurance etc need to be in her name. Is that correct?

YES to the first and NO to the second.
You as beneficiary don't own 'your' tenant-in-common half until the estate is probated
But as sole executor you are responsible for managing and protecting the assets of the estate (literally one-half of the value of the house, plus any other legacies) - until probate has been obtained. So I would have thought that if you were somehow forced by the ex-wife to change the 'responsible person' for receiving and paying utility bills, such bills should be addressed to the ex-wife (as part owner) AND you (as executor).

[swill453]

3. There's seems to be a clear signal from the other beneficiary

Just a clarification, there is no "other beneficiary". The other person appears to own half the house in their own right, but is not a beneficiary of the estate.

Scott.