Contentious Probate - Help Appreciated

[Clitheroekid]

The ex-wife says at the moment I don’t own half the house until Grant of Probate is obtained.

Correct.

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?

Incorrect. There’s a legal maxim that “The executor’s authority derives from the Will”. Consequently, you do have legal authority to deal with the estate.

Unfortunately, because your authority is only as good as the Will, and there’s a risk that the Will isn’t valid or has been superseded by a later Will, very few people – and certainly not the people who matter, like banks, solicitors etc – will accept your authority without the grant of probate.

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?

The utilities are first and foremost the responsibility of the occupier of the house, not the legal owner. Consequently, you, as executor, have the legal right / duty to notify the utility companies of the death and order final readings.

As the house is now empty responsibility reverts to the owners. In strict legal terms, as you don’t become an owner until probate has been granted the ex is probably correct to say that she is responsible. In practical terms I can’t see that it matters if the accounts are transferred into her name, so there’s no point in giving her grounds to complain. Just let her transfer the accounts if she wants to.

As Executor to my Uncle’s will what authority do I have with regards the house until Grant of Probate is obtained?

See above – you do have legal authority, but it’s unlikely most people will accept this without the grant.

The ex-wife says I am not half owner of the house until Grant of Probate has been received. Is that correct?

You’ve already asked this, and the answer is yes.

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

Grants for which I’ve applied recently are taking around 2-3 months, assuming there’s no inheritance tax payable.

[AsleepInYorkshire]

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.

Whoops - yes thanks Scott

AiY(D)

[Property48]

My late Uncle’s ex-wife’s nephew has changed the locks on my Uncle’s house (without my consent) and I now cannot gain access. I have asked them to put a set of keys in the post (registered post) asap. I am my Uncle’s sole Executor. They have refused to put the keys in the post as they say they want to meet me at the premises instead, I am suspicious of their motives and don’t want to meet them there. They refuse to leave the keys with a neighbour.
The house is currently empty.
Any thoughts on what I should suggest?

[Dod101]

My late Uncle’s ex-wife’s nephew has changed the locks on my Uncle’s house (without my consent) and I now cannot gain access. I have asked them to put a set of keys in the post (registered post) asap. I am my Uncle’s sole Executor. They have refused to put the keys in the post as they say they want to meet me at the premises instead, I am suspicious of their motives and don’t want to meet them there. They refuse to leave the keys with a neighbour.
The house is currently empty.
Any thoughts on what I should suggest?

Surely the opportunity to meet them and discover what they actually want cannot do you any harm unless that is the motive you are suspicious about?
Why not meet them and see what they have to say? They appear to have as much right as you to access the property if it is indeed owned 50/50.

Having read all of this thread it seems to me that your best way out is to offer them a price to buy out the estate. Obviously to protect yourself as executor you will need to get professional advice but that is not difficult.

Dod

[scrumpyjack]

I presume if she does not live in it, you both have the same rights to the property and either party could insist it be sold on the open market if you can't agree on another course of action. It is probably worth establishing that you do have the right to insist on open market sale so you can point that out to them and have a stronger negotiating position. You could also insist that you have a set of keys also as a demonstration of good faith on their part?

[Property48]

Thank you for all your advice so far.

I have spoken to the ex-wife and her nephew. She says as she is the legal owner of the empty property and they are going to put the house on the market via an auction, in principle I agree to this.

However they won’t provide me with details, or let me have any say, about who is instructed. She says as she is the only legal owner at the moment (and I am not until probate is granted), then ‘they can go ahead and do it’ and that ‘I have no say in the matter whatsoever’. Surely this is not correct?

As Sole Executor to my Uncle’s will I thought I would have a legal authority dealing with the estate before I am officially the half-owner, and this includes the house? I know neither side can ultimately sell the property without both signatures, but I can’t believe I have no say in who is instructed etc.

Also, she says as I don’t officially own any of the house yet until after probate then I can’t have a set of keys (the locks have been changed and without my consent). I’ve said I’ve been locked out of my Uncle’s home and this is illegal, but it was firmly rebutted

[DrFfybes]

I would keep a close eye on rightmove and other property sites for it appearing for sale.

Then I would contact the vending agent and inform them of the situation.

I suspect they would halt the sale, as it cannot complete unless both parties sign the Transfer form, which you cannot do without Probate. If it was to sell at Auction before Probate was granted, I suspect you would fail to complete according to the terms of the auction and open yourself up to liability.

Wonder who would be liable if it was done without your knowledge?

Paul

[scrumpyjack]

I would keep a close eye on rightmove and other property sites for it appearing for sale.

Then I would contact the vending agent and inform them of the situation.

I suspect they would halt the sale, as it cannot complete unless both parties sign the Transfer form, which you cannot do without Probate. If it was to sell at Auction before Probate was granted, I suspect you would fail to complete according to the terms of the auction and open yourself up to liability.

Wonder who would be liable if it was done without your knowledge?

Paul

I agree with that but I would also tell the other side that you will be watching out for the auction and will inform the auctioneers that the purported vendors do not have sole ownership and do not have your authority to proceed. The auctioneers will certainly pull the sale. Perhaps the other side will then behave more reasonably. Also you could point out to them, as I think Clitheroe wrote, that your share of ownership does exists as it derives from the Will. It is just that you cannot take any action in respect of it until the Court has confirmed it by grant of probate to you. Your ownership is 'on ice' til probate, it is not non existent.

[CliffEdge]

Sounds to me like they've got a nice little "arrangement" with a purchaser, maybe the nephew or a friend of his, to sell it at a low price. What other motivation can there be. They have something to hide.

[Lootman]

I would also tell the other side that you will be watching out for the auction and will inform the auctioneers that the purported vendors do not have sole ownership and do not have your authority to proceed. The auctioneers will certainly pull the sale. Perhaps the other side will then behave more reasonably.

Although the other side may respond to that by conceiving of some more private way to sell the property, perhaps to a connected party or to one of those guys who offer to pay "instant cash" for your house. There is an argument for doing what you suggest but there is also an argument to not give away your strategy.

Also you could point out to them, as I think Clitheroe wrote, that your share of ownership does exists as it derives from the Will. It is just that you cannot take any action in respect of it until the Court has confirmed it by grant of probate to you. Your ownership is 'on ice' til probate, it is not non existent.

Actually I did not think that an executor in that situation "cannot take any action". Rather there are some actions that cannot be effectively done because a third party will prevent it, by virtue of needing to see the grant of probate for instance. Otherwise an executor does have the right to take certain actions since that power and right is conferred by the Will, as you note.

As an example, I rented out a house that I was the executor over, prior to getting the Grant. Because that rental agreement didn't require the Grant, only that I had access to and sole possession of the physical property.

[Mike4]

I'd imagine the house cannot be sold at auction (or by any other way), as the deceased uncle is still recorded at the LR as a joint tenant. Consequently he needs to sign the transfer deed which obviously cannot happen.

If the ex-wife engages an auctioneer to sell it a contract may well be struck, but the only signatory to that contract will be the ex-wife so it will be frustrated, and the auctioneers I would imagine only have the ex-wife to pursue for wasted fees as it was only her who instructed them.

[Avantegarde]

I doubt very much that she has the legal authority to sell the house when a) probate has not been secured and 2) you own, or will own, half the property, which is currently under your jurisdiction anyway as the executor. If this situation is overwhelming, just employ a competent High Street solicitor who specialises in this sort of thing. This legal trade body may be helpful: https://www.step.org/about-step/public

Moderator Message:
.Post edited to remove unnecessarily personal comment. Clariman

[Lootman]

I'd imagine the house cannot be sold at auction (or by any other way), as the deceased uncle is still recorded at the LR as a joint tenant. Consequently he needs to sign the transfer deed which obviously cannot happen.

True but the LR only concerns itself with the legal title to the property. Could the ex-wife mischievously enter into a private transaction with a third party to sell the beneficial ownership of the property? In the simplest form by receiving 250K (or whatever it is worth) and handing over the keys and vacant possession. They could sign a deed or declaration of trust to reflect that change of beneficial ownership without troubling the LR by changing the legal ownership.

Just playing devil's advocate here.

[Mike4]

I'd imagine the house cannot be sold at auction (or by any other way), as the deceased uncle is still recorded at the LR as a joint tenant. Consequently he needs to sign the transfer deed which obviously cannot happen.

True but the LR only concerns itself with the legal title to the property. Could the ex-wife mischievously enter into a private transaction with a third party to sell the beneficial ownership of the property? In the simplest form by receiving 250K (or whatever it is worth) and handing over the keys and vacant possession. They could sign a deed or declaration of trust to reflect that change of beneficial ownership without troubling the LR by changing the legal ownership.

Just playing devil's advocate here.

Not sure I'd hand over £250K for beneficial ownership and not bother with getting my name on the LR records!

There is also the possibility of fraud. Should the deceased uncle's 'signature' miraculously appear on a transfer form which the LR accepted and changed the proprietorship record, that would probably take quite some effort to unwind.

[Lootman]

I'd imagine the house cannot be sold at auction (or by any other way), as the deceased uncle is still recorded at the LR as a joint tenant. Consequently he needs to sign the transfer deed which obviously cannot happen.

True but the LR only concerns itself with the legal title to the property. Could the ex-wife mischievously enter into a private transaction with a third party to sell the beneficial ownership of the property? In the simplest form by receiving 250K (or whatever it is worth) and handing over the keys and vacant possession. They could sign a deed or declaration of trust to reflect that change of beneficial ownership without troubling the LR by changing the legal ownership.

Just playing devil's advocate here.

Not sure I'd hand over £250K for beneficial ownership and not bother with getting my name on the LR records!

There is also the possibility of fraud. Should the deceased uncle's 'signature' miraculously appear on a transfer form which the LR accepted and changed the proprietorship record, that would probably take quite some effort to unwind.

Not sure I would either, but some would. And in fact I have twice increased my beneficial interest in a property via a declaration of trust, without any involvement with the LR. Of course in those cases I had the agreement of my co-owners, but the fact remains that it can be done.

And as you say, things like that can be unwound later, but only with a lot more delay and hassle. My point was limited to noting that the woman with occupation could, should she choose, make things a lot more difficult by signing away the property or at least as much of it as she can get away with.

[Clitheroekid]

I know neither side can ultimately sell the property without both signatures

it cannot complete unless both parties sign the Transfer form

I'd imagine the house cannot be sold at auction (or by any other way), as the deceased uncle is still recorded at the LR as a joint tenant. Consequently he needs to sign the transfer deed which obviously cannot happen.

Unfortunately, you are all wrong!

As I've said before, legal ownership of the house is now vested solely in the ex, but she holds the beneficial interest on trust for herself and the uncle's estate.

However, there's a doctrine known as overreaching, which basically says that the buyer has no need to be concerned about the beneficial ownership. All he has to do in order to obtain good title to the house is to pay the purchase price to two trustees.

The ex can therefore appoint anyone she likes as her co-trustee - her son, for example - and the two of them can then sign a valid transfer of the house which will be happily accepted by a buyer and registered by the Land Registry.

The sale proceeds would then be held on trust for the ex and the estate, and she would be legally liable to pay half to the OP as executor once probate was granted.

But she does not need his co-operation to sell the house.

[CliffEdge]

I know neither side can ultimately sell the property without both signatures

it cannot complete unless both parties sign the Transfer form

I'd imagine the house cannot be sold at auction (or by any other way), as the deceased uncle is still recorded at the LR as a joint tenant. Consequently he needs to sign the transfer deed which obviously cannot happen.

Unfortunately, you are all wrong!

As I've said before, legal ownership of the house is now vested solely in the ex, but she holds the beneficial interest on trust for herself and the uncle's estate.

However, there's a doctrine known as overreaching, which basically says that the buyer has no need to be concerned about the beneficial ownership. All he has to do in order to obtain good title to the house is to pay the purchase price to two trustees.

The ex can therefore appoint anyone she likes as her co-trustee - her son, for example - and the two of them can then sign a valid transfer of the house which will be happily accepted by a buyer and registered by the Land Registry.

The sale proceeds would then be held on trust for the ex and the estate, and she would be legally liable to pay half to the OP as executor once probate was granted.

But she does not need his co-operation to sell the house.

And any dodgy dealings will be a civil not a criminal matter. This is an alarming situation.

[stewamax]

CK raises a salient point.

The surviving tenant-in-common, who becomes both legal owner AND trustee (for the beneficiaries of the Will of the deceased and for him/herself) of all the property, can – with the legal fudge of appointing a second trustee – bypass the usual Land Registry restriction that would normally prevent its sale by the surviving tenant-in-common without agreement of the beneficiaries. And the survivor and trustee are then responsible for ensuring that the beneficiaries of the Will receive their due entitlement

However, the executor also has a de facto responsibility for ensuring that the assets of the estate are maintained and valued until he/she can do their main job of distributing the assets per the Will.

To my non-legal mind this seems a weird situation as the two roles clash head on.
Do the trustees (including the survivor) assume the normal executors' responsibility for valuing for HMRC that part of the estate?
Do they and not the executor distribute any proceeds of sale to beneficiaries?

[Property48]

Thank you so much for all your responses.

Yes, the above clearly states my conundrum. As Sole Executor surely I have some say in how the property is to be sold, and who is to be instructed?

The ex-wife is refusing to let me have details of the auctioneers that they are going to use, and she tells me I have no input in the process whatsoever (bedsides signature at the end). She’s says she is 100% the owner, until probate is granted - at which point it will then be 50/50

[Clitheroekid]

The ex-wife is refusing to let me have details of the auctioneers that they are going to use, and she tells me I have no input in the process whatsoever (bedsides signature at the end). She’s says she is 100% the owner, until probate is granted - at which point it will then be 50/50

Whilst she may have the legal authority to deal with the sale you should remind her (in writing) that she is also a trustee for yourself as the ultimate beneficial owner, and that as such she owes you a duty of care to maximise the value of the trust assets.

You should also make it clear that if she manages to sell the property, but for less than its full market value, she will be liable to you for breach of that trust and that you will sue her for any losses incurred.

I would hope that such a letter would at least give her pause for thought, and make her realise that she should obtain some legal advice. If she does so I would also hope that such advice would be to behave sensibly, and to work with you rather than against you in arranging a sale.