Sole Executor of my Uncle’s will - advice please

[Property48]

I would value your advice please.

My 87 year old Uncle has died [See here - Chris], and his ex-wife has turned up after walking out on him 37 years ago, she is the legal owner of half the house. The property is currently empty.

The aunt and her nephew have changed the locks and refuse to send me the keys in the post registered tracked etc. I have been left with no option but to pick the keys up from them at the premises, even though it is a 100 mile trip and I have 2 young children on my own (as my wife died).

I have a suspicion they won’t be at the property as prearranged on Wednesday, which obviously will be intentional just to waste my time.

I am Sole Executor of my Uncle’s will and not having access to the property is not only very upsetting but also preventing me from undertaking my legal responsibility to fulfil his wishes.

I am being given contradictory advice from various sources so don’t know where I stand. The police say it is a civil matter and so won’t get involved, is that correct? Also I’m not sure if I should have a locksmith on standby on Weds, but if I used them would that just make matters worse? I need to gain access to the property.

Moderator Message:
Split off from another thread as this is a separate (but related) issue. - Chris

[Eboli]

I think the starting point is to determine what exactly was the current nature of the ownership of the property immediately prior to your uncle's death.

You state that the ex-wife is

the legal owner of half the house

You do not state whether the house is in England. It is important to realise that different consideration may arise, for example, in Scotland.

In England a property that is jointly owned could be held in one of two ways:

1. as joint owners, or
2. as tenants-in-common

If A & B own a property as joint owners then on the death of either joint owner the other joint owner becomes the sole owner and this occurs by operation of law not by disposition of the deceased. In this situation if your uncle and the ex-wfe were joint owners then the ex-wife would become the sole owner of the property on the death of your uncle and she would do so outside your uncle's will. You, as executor, would have nothing to do with the transfer to sole ownership. It was common for solicitors at one time to assume that a married couple would want property to be held in this way.

If, however, A & B own a property as tenants-in-common then whenever one dies the share of the property of the deceased will pass according to his or her will (or by intestacy) and need not necessarily go to the other joint owner(s). In this case you would have to determine under the will who has become the owner of your uncle's share in the property.

In addition, it should be noted that where property was owned under a joint tenancy it is possible at any time for one of the joint owners to sever the joint tenant unilaterally. So even if the property was originally acquired by your uncle and ex-wife as joint tenancy the joint tenancy could have been severed into a tenancy-in-common on, for example, his divorce and that this could have been done by either party simply declaring the tenancy was severed and giving notice to the other party.

The reason why the ownership needs to be clarified should now be obvious. If there was a joint tenancy then the ex-wife might be the sole owner and your executorship would have nothing to do with her rights over the property. So this needs to be clarified first.

You also mention

I need to get access to the property

but fail to explain why. Is this because the house contents form part of your uncle's estate and in whole or in part are left to others? Without understanding the reason for this comment it is difficult to comment further.

Please do not go changing locks on the property until you are sure whether the share of the property previously held by your uncle is properly part of his estate.

Eb

[Lootman]

Please do not go changing locks on the property until you are sure whether the share of the property previously held by your uncle is properly part of his estate.

I disagree with that part. As the sole executor, he has power under the Will to administer the estate's assets and that includes this property, assuming it is part of the estate which is easily checked. So not only does he have the right to enter the property, but he is in fact the only person with that right given that nobody lives there.

So regardless of what the Will says about this property, the executor is allowed to enter for the purpose of valuation of it and the effects therein. Plus of course to ensure that these other parties are not helping themselves to the items contained therein.

So this is one of those cases where it is better to ask for forgiveness than for permission. I would go there and, unless admitted, enforce entry, change the locks and secure the possessions. 37 years is a heck of a long time.

[Eboli]

Lootman says:

As the sole executor, he has power under the Will to administer the estate's assets and that includes this property, assuming it is part of the estate which is easily checked. So not only does he have the right to enter the property, but he is in fact the only person with that right given that nobody lives there.

But that's the very issue, Lootman. Is the property part of the deceased's estate? Surely the point was laboured in my reply?

Eb.

[Lootman]

Lootman says:

As the sole executor, he has power under the Will to administer the estate's assets and that includes this property, assuming it is part of the estate which is easily checked. So not only does he have the right to enter the property, but he is in fact the only person with that right given that nobody lives there.

But that's the very issue, Lootman. Is the property part of the deceased's estate? Surely the point was laboured in my reply?

A query to the land registry should easily confirm that. I assumed that the OP would not have asked the question unless the title to the property was known.

The OP says that he knows that the ex wife is the legal owner of half of the house. So presumably he knows who the other co-owner is.

If it had been held as a joint tenancy then that would be a problem. But it is a standard part of any divorce to change that to a TIC structure.

[Loup321]

There was another related thread. I think it was established in there that the property was held as tenants in common. The link is in the OP.

[Clitheroekid]

Please do not go changing locks on the property until you are sure whether the share of the property previously held by your uncle is properly part of his estate.

I disagree with that part. As the sole executor, he has power under the Will to administer the estate's assets and that includes this property, assuming it is part of the estate which is easily checked. So not only does he have the right to enter the property, but he is in fact the only person with that right given that nobody lives there.

Firstly, I don't understand why this has been started in a new thread, as it only serves to confuse matters, and there's now a high risk of people who haven't read the original thread giving advice based only on the very limited information in the first post.

It's already been established in the other thread that the property was owned by the OP's father and his ex-wife as tenants-in-common. Consequently, the OP, as executor, does not have the sole right to enter the property. The ex-wife also has an unrestricted right of entry, and it's irrelevant whether she lives there or not.

Consequently, changing the locks will illegally bar her from entry unless the OP ensures that she's given a set of keys to the new locks immediately after they've been changed, so it is definitely not a good idea.

However, this is an absurd situation, and needs resolving ASAP.

On 22 March I posted: 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.

So (again addressing the OP directly) have you (or a solicitor on your behalf) actually written to her yet? It's essential to ensure that everything is recorded in writing, but it's not clear if you've taken any specific action. You said on 22 March that you were instructing a solicitor on 23 March - did you do so, and what was their advice?

[Eboli]

I have now had a chance to read through the other thread (that when I wrote my reply I was ignorant of). From that it is clear that the joint tenancy was severed at or soon after the divorce. Accordingly, I wholly agree with Clitheroekid that both the OP as sole executor and the ex wife have rights over the property. There appears to be nothing to suggest occupancy by the ex wife immediately prior to death to give rights under other legislation. I apologise to Lootman in not appreciating the facts clarified in the other thread and would have replied differently.

From a practical point of view I would suspect that the ex wife has not appreciated the legal consequences of the previous severance of the joint tenancy and may be acting under advice that assumes she is a surviving joint tenant - that would clearly offer one possibly explanation for the change of locks.

In any event the most sensible advice would be to open up communication with the ex wife after taking legal advice and before taking any further action.

[scrumpyjack]

I have now had a chance to read through the other thread (that when I wrote my reply I was ignorant of). From that it is clear that the joint tenancy was severed at or soon after the divorce. Accordingly, I wholly agree with Clitheroekid that both the OP as sole executor and the ex wife have rights over the property. There appears to be nothing to suggest occupancy by the ex wife immediately prior to death to give rights under other legislation. I apologise to Lootman in not appreciating the facts clarified in the other thread and would have replied differently.

From a practical point of view I would suspect that the ex wife has not appreciated the legal consequences of the previous severance of the joint tenancy and may be acting under advice that assumes she is a surviving joint tenant - that would clearly offer one possibly explanation for the change of locks.

In any event the most sensible advice would be to open up communication with the ex wife after taking legal advice and before taking any further action.

As I recall from the other thread, the ex wife was saying that the executor had no status in the matter until he had been given probate. That suggests she is not under the mistaken impression that it was joint tenancy. So it is vital to apply for probate ASAP, even if he does not yet have full information/valuations, as I said in a previous post on the detached thread!

[stewamax]

In a nutshell, the tenant-in-common ex-wife is legal owner of the house – she can even sell it - until probate. She* must retain it or its sale proceeds for the executor to distribute after probate, but until then the executor must ensure that the house or its value are not reduced unnecessarily and he will need to have it valued for probate and maybe to pay HMRC. How the executor can do this (legally…!) when the ex-wife is blocking him is unclear: perhaps CK can clarify.

* except for the ‘legal fudge’ I mentioned in the earlier thread

[GoSeigen]

Please do not go changing locks on the property until you are sure whether the share of the property previously held by your uncle is properly part of his estate.

I disagree with that part. As the sole executor, he has power under the Will to administer the estate's assets and that includes this property, assuming it is part of the estate which is easily checked. So not only does he have the right to enter the property, but he is in fact the only person with that right given that nobody lives there.

Firstly, I don't understand why this has been started in a new thread, as it only serves to confuse matters, and there's now a high risk of people who haven't read the original thread giving advice based only on the very limited information in the first post.

Sorry that is my fault. The OP started posting on the old thread using a new account and gave no indication it was the same issue so I reported the post and asked for it to be put in a new thread to avoid confusion. It seems my request has had exactly the opposite effect to the one I intended!

GS

[CliffEdge]

Please do not go changing locks on the property until you are sure whether the share of the property previously held by your uncle is properly part of his estate.

I disagree with that part. As the sole executor, he has power under the Will to administer the estate's assets and that includes this property, assuming it is part of the estate which is easily checked. So not only does he have the right to enter the property, but he is in fact the only person with that right given that nobody lives there.

Firstly, I don't understand why this has been started in a new thread, as it only serves to confuse matters, and there's now a high risk of people who haven't read the original thread giving advice based only on the very limited information in the first post.

Sorry that is my fault. The OP started posting on the old thread using a new account and gave no indication it was the same issue so I reported the post and asked for it to be put in a new thread to avoid confusion. It seems my request has had exactly the opposite effect to the one I intended!

GS

Think I did the same. Sorry to have caused confusion.