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Probate, dealing with difficult sister

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GoSeigen
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Probate, dealing with difficult sister

#121004

Postby GoSeigen » February 28th, 2018, 11:29 am

Two daughters survive and are the only beneficiaries and both named as executors in their divorced father's will after his death just over 12 months ago. For various reasons younger sister insisted on applying for sole probate and elder sister demured. Probate was granted 9mths ago. The estate is pretty straightforward: a fair amount of cash savings and a small flat, resulting in a modest amount of IHT which has been paid as have all debts.

Since the death the relationship between the sisters has deteriorated to the point where they no longer communicate (at the insistence of elder sister). An additional complication is that younger sister suffered a trama six months ago, but said she wished to continue as executor. A year has passed and she has dragged her feet thoughout, only very reluctantly making an initial distribution but still retaining half the cash in the executor account, and the flat is still not sold. Since the first distribution there has been minimal communication regarding the estate.

Older sister is now trying to decide what to do next. Reconcilliation may be difficult and take time, so it may be better to deal with the estate spearately on a formal basis. Obviously she could use a solicitor, but do Fools have experience of other ways of handling this situation? Working through other family members can cause issues, I'd imagine, and friends may have a limited desire to get involved.

When she does make contact, what should older sister say? She wants to know when a further cash distribution will be made and why the delay, and what the plans are for disposal of the flat. She also has no copies of the will and flat leasehold agreements etc.

What is she entitled to ask for and expect to be done?


GS

ten0rman
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Re: Probate, dealing with difficult sister

#121109

Postby ten0rman » February 28th, 2018, 5:17 pm

I see no-one else has replied as yet, so here is my take on it based on my experiences with our (brother & sister) parents wills back in 2004/05.

My brother & I were nominated executors, with my sister last choice as she lives abroad. My brother who lived nearer to our parents had dealt with them so I did the probate. My brother took reserved powers which meant that he could take over, or indeed come in to assist if necessary. In the event I did it all, but the point is that my understanding is that the elder sister in your example may well have reserved powers in which case she can insist on joining in the process and younger sister cannot object.

What this will do for their relationship though is anyones guess.

By the way, I am not a lawyer.

ten0rman

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Re: Probate, dealing with difficult sister

#121303

Postby GoSeigen » March 1st, 2018, 11:39 am

ten0rman wrote:I see no-one else has replied as yet, so here is my take on it based on my experiences with our (brother & sister) parents wills back in 2004/05.

My brother & I were nominated executors, with my sister last choice as she lives abroad. My brother who lived nearer to our parents had dealt with them so I did the probate. My brother took reserved powers which meant that he could take over, or indeed come in to assist if necessary. In the event I did it all, but the point is that my understanding is that the elder sister in your example may well have reserved powers in which case she can insist on joining in the process and younger sister cannot object.

What this will do for their relationship though is anyones guess.

By the way, I am not a lawyer.

ten0rman


ten0rman, thank you for your thoughts. Yes, I guess that is the problem we are grappling with. Elder sister has the distinct feeling that her inheritance is being held hostage in a power game.

Your idea of her also proving the will (AKA double probate?) is clearly a legal possibility. But what would it achieve? Genuine question, not rhetorical. From my reading I understand she would have the power to go ahead and sell the property but wouldn't that lead to conflict if she didn't have the agreement of the other executor? Becoming a second executor would require cooperation it seems to me, which is precisely what is/was lacking in the sibling relationship, which when it broke down was controlling/abusive.


A friend suggested going nuclear [presumably in order to make compliance look more attractive to sister than playing the power game]. In this situation what would that involve? I suppose demanding a copy of the estate accounts and immediate distribution of available cash to the (two) beneficiaries, and immediate initiation of the sale of the property, but what sort of legal stick is there to wield if the sister drags her feet and plays games?


On the subject of communication: there has been no contact between the sisters for some months, and that includes the probate affairs. The executor has not communicated at all what is happening with the estate. I don't think she has any concept of separating the official (probate correspondence) from the personal and perhaps would blame failure to inform on her sister for having cutting off contact. However, AFAICS her sister is entitled to be kept informed of what is happening and presumably has the right to receive:

-A written copy of the estate accounts
-A copy of the will
-A copy of the flat's lease and deeds and other important documents about the assets and debts

How to ask for these on a purely business level without inviting wider contact??? What deadline is reasonable to set and what does she do if there is no cooperation?

This sort of situation must be a fairly common experience... If the above makes us look amateurish in the field of family politics, well, we are fortunate to have had minimal conflict in our family...


GS

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Re: Probate, dealing with difficult sister

#121405

Postby ap8889 » March 1st, 2018, 4:49 pm

Older sister ought to consider she has excused herself from the executor role, but she cannot excuse herself from dealing with her sister. She needs to get an icy grip on whatever emotion she has and start communications with the younger sibling to sort this out. Be that via phone or letter or email, a polite enquiry into how the estate stands would be my first step. Agreeing some timelines to wind up the estate would be sensible. It really shouldn't take very long. Sell the property, at auction if necessary, pay the debts, cash distribution, make accounts and done. Piece of cake, provided records available and digit is extracted.

Failure to talk is going to doom this to expensive legal disputes. Great fun for lawyers, disaster for the participants.

Bob Hoskins was right: it is good to talk!

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Re: Probate, dealing with difficult sister

#121425

Postby ap8889 » March 1st, 2018, 5:27 pm

GoSeigen wrote:
How to ask for these on a purely business level without inviting wider contact??? What deadline is reasonable to set and what does she do if there is no cooperation?

This sort of situation must be a fairly common experience... If the above makes us look amateurish in the field of family politics, well, we are fortunate to have had minimal conflict in our family...


GS


Dude, that is the easiest part.

Hi X, I was feeling really shitty about what happened to relative X , and it has just hit me that it has been a year. How are you bearing up? //opens up conversation with admission of vulnerability and attempts some level of empathy.

(pause to allow sibling to make some noise)

(Insert vague emotional empathy noises in return here)

Say, I have been reading about how much work winding up an estate can be. I would really like to help you out with some of that. // lies// How is the estate standing now? //Nicely asks for the data//

(Listen to response)

And how long do you think it will take until it will be settled? //Request for timeline//

(Listen to response)

Wow, that seems a long way off. That's not really going to work for me because //insert reason.// I was really hoping to draw a line under it by //insert nearer date.// And I absolutely need the inheritance by //insert desired nearer date.// because of //insert real reason.//

(Listen to response)

Say I dont think I have that quite set in my head? Please email me the info so I might be better able to understand, and maybe help speed things up. // Request for more info in writing//

Thanks.

Phone down.

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Re: Probate, dealing with difficult sister

#121471

Postby ten0rman » March 1st, 2018, 8:35 pm

GS,

I'm sorry, can't help any further. What I did was to relate my personal experience in the hope that it might jog some else with more specialized knowledge into action.

I'm fortunate that in fact I and my brother and sister do enjoy good relations. Furthermore, my three children also enjoy good sibling relationships - as far as I know. Hence I have no experience at all of sibling rivalry/jeolousy/antagonism/whatever. The nearest I have had is, shall we say, differences of opinion between myself and our mother, and it turns out my sister also had problems there. But when it came to our parents wills, other than the blanket refusal of our mother to deal with our father's will (she was first executrix), hence my brother and I were of the same will, if that's the right phrase, and got her to renounce her executrix (a sheet of paper saying "I, ten0rman's mother, do hereby renounce (or something) being executrix to ten0rman's father's will"). Dead easy, and then as already explained, my brother took reserved rights whilst I did the grunt work.

The following is sort of "blue sky" thinking, again in the hope that someone better qualified will correct me.

Probate has been granted. Now, my understanding is that the will is now a public document, copies of which anyone can obtain from HM Courts & Tribunals for £9.00 each (2012 prices). Would it be worthwhile elder sister obtaining a copy?

Another idea, but I don't know the practicalities of this one. Might it be possible to use the Small Claims Court? I understand that lawyers are not required for this.

Another one. Who owns the flat? Check with Land Registry? (Do they actually deal with flats?) Thinking about my parents deaths, their wills specified that on the second death, their house came to the three of us to do with as we wished. My solicitor recommended transferring the house into our joint names, before we sold it. (There was a CGT saving that way.) Hence the three of us would have appeared on the Land Registry for a short while. Depending on the will, it might be possible for elder sister to put some sort of legal block on it's sale unless she, elder sister, gives permission etc.

Of course, it all depends on the will, so maybe that is the first step.

I wish you all the best in sorting it out. I found it easy, but as I said no sibling problems, and I kept mine informed all the way through.

Regards,

ten0rman

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Re: Probate, dealing with difficult sister

#121475

Postby ten0rman » March 1st, 2018, 9:01 pm

Just a bit more.

When I did my parents, certainly I gave by siblings a copy of the accounts as much as anything to prove that I hadn't missed anything and that I wasn't fiddling anything, but I don't think there was any requirement to do that. Similarly, I don't recall presenting them with a copy of the will or the house deeds, so there must not have been any requirement to do so. But then, as I say, we are ok, indeed at one point, the estate owed me some money so I asked if I could take my mother's shares in BP instead. My sister simply said "make sure you aren't going to lose out on it"

Assets & debts. Well, I simply paid for them, such as they were, and then charged the estate. Estate agent fees when we eventually sold the house came out of the profits before we saw the money! In respect of assets, eg bank accounts, bonds, savings etc, all I did was to send off a copy of the death certificate to each party and then wait for the money to come rolling in (in a manner of speaking).

It's a pity that elder sister ever agreed to bow out of probate. Since probate has been granted, then elder sister can't do much about it now. As AP8889 says, there isn't now much that she can do without incurring great expense with lawyers, and even then I wonder what can be done. The more I think about it, the more I think elder sister needs to independently get hold of a copy of the will as mentioned above and then see what leverage she can produce over the flat, ie if the will suggests that the flat is jointly owned by the sisters, then get a block put on its sale, or maybe as you yourself suggested, force a sale, but how you can do that without going to court and incurring legal fees I really do not know.

As ever, I'm not a lawyer, and thus may be talking rubbish.

Regards,

ten0rman

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Re: Probate, dealing with difficult sister

#121479

Postby uspaul666 » March 1st, 2018, 9:45 pm

Regarding the will, if probate has been obtained then the will is now a matter of public record and anyone can ask for a copy from the probate office without reference to the administrator of the estate.

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Re: Probate, dealing with difficult sister

#121486

Postby Clitheroekid » March 1st, 2018, 11:13 pm

Situations like this are surprisingly common, and are one of the reasons that some people, foreseeing such problems, appoint professional executors.

As has been said, it may be possible for the older sister (`OS') to apply to be joint executor if `power was reserved' to her in the Grant. If OS didn't want to act there were two possibilities. She could either have had `power reserved' to her, which means she can apply now to be a co-executor; or she could have renounced probate, which means it’s as though she had never been appointed in the first place.

However, even if power has been reserved I can't see that it would solve the problem. Executors must act in unison, and if the younger sister (`YS') isn't willing to co-operate the situation would be no better.

In purely legal terms OS could apply to the court under section 50 of the Administration of Justice Act 1985 to have YS removed as executor, and for her to be replaced by OS. However, this would be a fairly drastic step to take, and should only be seen as a last resort. In any case, the present circumstances probably aren't sufficiently serious to justify such action.

You haven't said why OS decided to terminate communication with YS, and this may obviously be highly relevant in deciding how to move forward. However, as it was her decision she can obviously reverse it, and it would seem essential that she does so, if only to be able to make any progress.

If she doesn't feel able to do so then she could try to communicate through a third party that was trusted by both of them (assuming anyone willing to take on such a thankless task could be found!) or through a solicitor. The problem with involving a solicitor is that it is usually seen as a sign of aggression, which may be counter-productive. It would also, of course, incur costs and probably lead to an argument as to who should pay them.

Perhaps the best solution is for OS to put pressure on YS by saying that she really needs money for something - a new house is the obvious reason. She might even say that she's seen one, and the vendor has said he wants a sale completed within, say, 3 months.

You say "the flat is still not sold" but not whether this is because it's on the market and there’s no buyer or because it's not even been put on the market.

If it's the former then it may well be unreasonable to require payment that would require half the sale proceeds, as YS has no control over when a buyer's found. In that event the sum of money required could be modified so as to absorb most of the cash element. For example, if there's £100k in cash OS could say she wants to build an extension that will cost around £45k. After all, there’s nothing to stop her changing her mind once she receives the dosh! ;)

However, if the flat's still not even on the market a year after the death it's a serious matter. The flat will be incurring expense, such as council tax, service charges etc, and there can be no reasonable excuse for the estate actually losing money because of YS's failure to act responsibly.

In that event OS would need to take a much more assertive attitude, perhaps setting out a timetable for action, and if this is ignored she should then be prepared to back it up with at least the threat of legal action. She might also `incentivise' YS by saying that any expenses incurred after the first anniversary of the death would come out of YS's share, on the basis that if she'd done her job properly those expenses would never have been incurred.

But as I said earlier, it would be far better to avoid even the threat of legal action if possible and instead use persuasion and the odd `white lie' to achieve progress.

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Re: Probate, dealing with difficult sister

#121646

Postby GoSeigen » March 2nd, 2018, 1:51 pm

Thank you everyone for the replies. I'm trying not to turn this into a Comfort Cafe post but airing the issues helps. You've given us plenty to think about.

ap8889 wrote:Dude, that is the easiest part.

Hi X, I was feeling really shitty about what happened to relative X , and it has just hit me that it has been a year. How are you bearing up? //opens up conversation with admission of vulnerability and attempts some level of empathy.

[...]
Older sister ought to consider she has excused herself from the executor role, but she cannot excuse herself from dealing with her sister. She needs to get an icy grip on whatever emotion she has and start communications with the younger sibling to sort this out


ap8889, I get where you're coming from. I think you have a sense of the dread feeling of doom which older sister (OS) will experience when having to face her sister. "A polite enquiry into how the estate stands would be my first step": this would in normal circumstances invite a frontal verbal assault about how OS only cares about money, that she wouldn't need her inheritance if she had better financial planning, has a useless husband who should get a normal job, etc etc. It's heartbreaking to witness or even think about it. A letter is probably easier...

ClitheroeKid,

Thanks for your great input as always. You mentioned a few points which need more detail and I'll also respond to some of your comments:
Clitheroekid wrote:"Situations like this are surprisingly common, and are one of the reasons that some people, foreseeing such problems, appoint professional executors. "


In hindsight the signs have been there for a while, but the breakdown in the sibling relationship hit like an avalanche after the bereavement. I don't think their father could have foreseen it. Perhaps the target of YS's feelings transferred from her father to her sister when he passed...

Clitheroekid wrote:You haven't said why OS decided to terminate communication with YS, and this may obviously be highly relevant in deciding how to move forward. However, as it was her decision she can obviously reverse it, and it would seem essential that she does so, if only to be able to make any progress.

You may have picked up by now that it was a response to verbal and emotional abuse, to preserve her own sanity and family relationships. c.6 months ago YS's solicitor wrote suggesting OS resume contact to deal with the estate but OS replied to the effect that she wasn't ready to do so but that she would trust YS to carry out her duties as executor, applying the usual standards of care and professionalism. The exchange went no further.

It's difficult to know how much time to allow and what range of issues to deal with when communication is resumed, hence this thread; and trying to judge whether an objective, disinterested person might feel "the usual standards of care and professionalism" are actually being followed...

Clitheroekid wrote:You say "the flat is still not sold" but not whether this is because it's on the market and there’s no buyer or because it's not even been put on the market.

To the best of my knowledge it hasn't been put on the market. When earlier discussions happened YS's attitude was that she would not do any probate work without OS being present; and that there was no reason OS should need her inheritance anyway, as she had no idea her father was going to die and should be able to live as if it had not happened; and besides, she herself wouldn't know what to do with her own share if it were distributed...


Clitheroekid wrote:In that event OS would need to take a much more assertive attitude, perhaps setting out a timetable for action, and if this is ignored she should then be prepared to back it up with at least the threat of legal action

You mentioned this without saying what legal action she might be able to bring! Is there a point where the executor is expected to meet the timetable of one of the beneficiaries, or is it more nuanced than that?


GS
EDIT: P.S. Power was reserved...

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Re: Probate, dealing with difficult sister

#121660

Postby Clitheroekid » March 2nd, 2018, 2:36 pm

GoSeigen wrote:
Clitheroekid wrote:In that event OS would need to take a much more assertive attitude, perhaps setting out a timetable for action, and if this is ignored she should then be prepared to back it up with at least the threat of legal action

You mentioned this without saying what legal action she might be able to bring!

I did say at the beginning of the post:
In purely legal terms OS could apply to the court under section 50 of the Administration of Justice Act 1985 to have YS removed as executor, and for her to be replaced by OS. However, this would be a fairly drastic step to take, and should only be seen as a last resort. In any case, the present circumstances probably aren't sufficiently serious to justify such action.

And although the element of delay as things stand would probably not satisfy the fairly high threshold for replacement of an executor this situation is like many other situations in life, where the mere threat of legal action, particularly if it is made by a solicitor, is often enough to get a result.

Is there a point where the executor is expected to meet the timetable of one of the beneficiaries, or is it more nuanced than that?

There's a concept known as `the Executor's Year', which basically means that an executor would normally be expected to have administered the estate within a year of death, and that legatees who have been left a sum of money are entitled to interest after the first anniversary. However, it's often the case that an estate being administered quite competently will take far longer than a year to administer, and (apart from having to pay interest) there is no sanction against an executor who doesn't complete administration within the year.

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Re: Probate, dealing with difficult sister

#123458

Postby GoSeigen » March 9th, 2018, 12:48 pm

Thanks for advice so far. We have finally had a look at the will -- a year too late, I know.

Question: does the wording which refers to a Trust and using "Trustee" thoughout rather then "Executor" make any difference to the rights of the beneficiaries, the process of dealing with the estate and the responsibilities and powers of the Trustee or Trustees as the case may be. In particular, Older Sister opted for power reserved but I presume she is still considered a trustee? And at what point do the assets actuall pass from the estate into the trust? Am I over-reading here?


This is the relevant part:

This is the last will and testament &c
1. I appoint [Older Sister] and [Younger Sister] to be the executrices and trustees hereof.
2. In this will the expression "my trustees" shall where context permits mean its trustees for the time being whether they are original additional or substituted.
3. I give all my estate (out of which shall be paid my funeral [&c] expenses and my just debts) to my trustees upon trust as to such estate to sell it or (if they see fit and without being liable for loss) to retain it or any part of it in the state it is at the time of my death and to hold the trust fund upon trust absolutely for [the two sisters] in equal shares.

Dated c1996.

Presumably the trust is for tax purposes?

GS

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Re: Probate, dealing with difficult sister

#123728

Postby SteelCamel » March 10th, 2018, 10:23 am

No, it makes no difference and is the correct wording. An estate is a trust, and the executors are the trustees of that trust.

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Re: Probate, dealing with difficult sister

#124249

Postby Clitheroekid » March 12th, 2018, 2:33 pm

GoSeigen wrote:Question: does the wording which refers to a Trust and using "Trustee" thoughout rather then "Executor" make any difference to the rights of the beneficiaries, the process of dealing with the estate and the responsibilities and powers of the Trustee or Trustees as the case may be. In particular, Older Sister opted for power reserved but I presume she is still considered a trustee? And at what point do the assets actuall pass from the estate into the trust? Am I over-reading here?

It's standard practice to appoint executors who, if there are ongoing trusts set up by the Will, miraculously morph into trustees.

If OS had power reserved she is not acting as an executor, and therefore cannot undergo the said morphing process into a trustee. If she applied to act as an executor she would then become a co-trustee with YS.

The point at which the executors become trustees is the point at which administration of the estate is completed, so that the only remaining matters are the administration of the Will trusts.

The parts of the Will that you quote are again standard provisions. Clause 3 sets up what's called a `trust for sale' - basically a direction to the executors to liquidate the estate and hold the proceeds on the trusts set out in the Will. It's not set up for tax reasons but administrative ones.

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Re: Probate, dealing with difficult sister

#124395

Postby GoSeigen » March 12th, 2018, 11:11 pm

Clitheroekid wrote:
GoSeigen wrote:Question: does the wording which refers to a Trust and using "Trustee" thoughout rather then "Executor" make any difference to the rights of the beneficiaries, the process of dealing with the estate and the responsibilities and powers of the Trustee or Trustees as the case may be. In particular, Older Sister opted for power reserved but I presume she is still considered a trustee? And at what point do the assets actuall pass from the estate into the trust? Am I over-reading here?

It's standard practice to appoint executors who, if there are ongoing trusts set up by the Will, miraculously morph into trustees.

If OS had power reserved she is not acting as an executor, and therefore cannot undergo the said morphing process into a trustee. If she applied to act as an executor she would then become a co-trustee with YS.

The point at which the executors become trustees is the point at which administration of the estate is completed, so that the only remaining matters are the administration of the Will trusts.

The parts of the Will that you quote are again standard provisions. Clause 3 sets up what's called a `trust for sale' - basically a direction to the executors to liquidate the estate and hold the proceeds on the trusts set out in the Will. It's not set up for tax reasons but administrative ones.



SteelCamel and Clitheroekid, thank you. Your contributions are very helpful.

OS is working on the drafting of a suitable letter. She is still concerned that renewed contact will be seen by YS as an opportunity to reassert control over her and manipulate the newly-restored relationship but I guess she simply has to try... she believes most likely response is that YS will refuse to proceed with anything without the physical presence and help of OS. She cannot quite resolve how to tread the line between acquiescence with renewed abuse, and open conflict.

Will feed back if and when there's a reply.

GS

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Re: Probate, dealing with difficult sister

#138193

Postby GoSeigen » May 10th, 2018, 10:17 pm

GoSeigen wrote:
OS is working on the drafting of a suitable letter. She is still concerned that renewed contact will be seen by YS as an opportunity to reassert control over her and manipulate the newly-restored relationship but I guess she simply has to try... she believes most likely response is that YS will refuse to proceed with anything without the physical presence and help of OS. She cannot quite resolve how to tread the line between acquiescence with renewed abuse, and open conflict.

Will feed back if and when there's a reply.

GS



Quick update on this situation: At the time of the last post, Older sister was drafting a letter to ask the younger sister, the executor, for information about the estate: accounts and a date for next distribution. They had not been communicating on a personal level for some six months.

OS sent the letter but forgot to sign it. There has been no reply from YS; however, about a week after it was sent, YS emailed OS's elderly mother-in-law, attaching a copy of the letter from her beneficiary sister. She asked OS's MIL to intervene, suspecting that the latter's son, i.e. OS's husband, had forged the letter! I am not kidding. As I said, there has been no reply directly to OS.


So, after allowing six weeks for a reply, OS has written again asking for the same information. It's now almost 15 months since date of death and executor has sent no updates to her joint beneficiary and is still sitting on a sizeable amount of undistributed cash. Will update if anything new happens.


GS

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Re: Probate, dealing with difficult sister

#138831

Postby fuiseog » May 13th, 2018, 3:54 pm

Surely all beneficiaries are entitled to a copy of the will?

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Re: Probate, dealing with difficult sister

#138849

Postby DrBunsenHoneydew » May 13th, 2018, 4:39 pm

fuiseog wrote:Surely all beneficiaries are entitled to a copy of the will?

If there is a will the Executor will usually tell you what the will says and what you will receive.
But at this stage you are not entitled to a copy of the Will unless the executor gives permission
Eventually the Will (but not necessarily the associated Accounts) is lodged in the Probate Office registry and will become a public document that anyone can look at.

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Re: Probate, dealing with difficult sister

#138894

Postby GoSeigen » May 13th, 2018, 8:49 pm

fuiseog wrote:Surely all beneficiaries are entitled to a copy of the will?


She hasn't actually asked for a copy of the will, but even if she had, the problem is not what she is entitled to, but the fact that the executor is not communicating at all about the estate.


GS

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Re: Probate, dealing with difficult sister

#139081

Postby Jabd2001 » May 14th, 2018, 9:59 pm

I suspect it will have to get worse before it (might) get better...
Yes, none of the reasonable options work if you are dealing with someone who isn’t behaving reasonably. I think you will have to go the legal route, OS (who I presume is your wife?) will need to unreserve her power as an executor and start insisting on taking responsibility for administering the estate with her sister. I am not a lawyer but I suggest OS needs one.
Only once this is completed, will there be a possibility of trying to heal the relationship. Whilst the estate is unresolved nothing can move on.


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