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to think probate law/processes need an urgent overhaul?

(38 Posts)
gemlinmae Thu 07-Mar-19 16:32:50

I've recently found out that my partner's family didn't follow the correct "distribution" law when it came to dealing with his late parent's estate. The parent died without a will and a recent post on here about probate law mentioned that you can't do certain things in certain jurisdictions (think Span, Italy, etc where you cannot disinherit children), so I checked what should have happened in that case.. and it so clearly, blatantly wasn't done. It's akin to the law saying "a third of the cash/investment assets should go to children" (it's that clear) and basically all of it was taken by the very new spouse of the deceased.

I don't know whether to mention this to my partner because it will drag up old pain, but it seems incredible that the law says 1 thing and another thing happened because the executors just went ahead and did it. I'm not even aware of how much would be involved, but i am pretty shocked that there's very little oversight on this, and people can just go ahead and do "what's right" (according to them!) rather than what the law or a will says.

I've had a similar thing happen in my own family once before, years ago (my gran's house was basically emptied of all furniture and cash in the week after her death by one of her estranged sons and his neighbour, before any close relatives could travel back and sort funeral arrangements, never mind start thinking about a will). but i'd thought it was a one-off bad incident that was never challenged.

AIBU to now think that the way probate/wills/inheritance works needs more oversight/accountability?

as a layman i can't understand how this can come to pass, nor how we could challenge this latest example (if i do decide to mention it to my partner).

peridito Fri 08-Mar-19 10:02:51

That's a rather aggresive post Gregory .

Do you expect the government to spend tax payers money on making sure you get your due? excuse me ? Bit over the top for a response to me thinking that probate law needs reform .

The law gives you rights and enforce them but the onus is on the individual to defend them.
It seems to me that in many areas concerning money there are checks and scrutiny to make it difficult /deter people from comitting fraud . There seems to be none at all when it comes to wills and probate .

the onus is on the individual to defend them
well actually I think the onus is on executors not to break the law in the first place .

And I guess you missed the bit where I said that we did defend ourselves .

Suing would have been cheaper in that if you sued appropriately

I'm still not clear on the process involved in suing an executor where they have ignored a will ? Can you give me an idea of the costs involved ,is it something which a layperson can do without legal advice ?

museumum Fri 08-Mar-19 10:09:43

Scotland and England have very different systems. In Scotland you can’t disinherit a child.
This goes back to olden days when the local parish looked after destitute people and didn’t feel the charity of ordinary people should be burdened with caring for people whose family had plenty of money but had some petty falling out.

FrancisCrawford Fri 08-Mar-19 10:38:33

A property in join names as joint tenants goes to the other joint owner(s) and the same with joint bank acocunts - in England and are outside the will

Not sure if people have seen that this matter will be dealt with under Scots Law, which is quite different as regards Property, succession etc, eg there is no such thing as “joint tenants”. There are a number of destinations that govern how property is held, including “equally and survivor”. In Scotland, the majority of properties are held under freehold, with no ground rent. It is not possible to register/record a new lease of residential property, only commercial.

The law governing transmission after death is the Succession (Scotland) Act 1964 (as amended)

In the case of intestacy, the children of the deceased are entitled to a share of the moveable estate, not the heritable.

There is no such thing as probate in Scotland, the matter is dealt with by the Sherriff Court, who issue a confirmation, which enables the estate to be dealt with.

peridito Fri 08-Mar-19 15:04:19


although we managed to get a response by employing a slcr to contact executix I am genuinely interested to know if it might have been cheaper to sue as you suggest . Is this something that one could do without legal advice ?

GregoryPeckingDuck Fri 08-Mar-19 15:18:08

@peridito but it’s true. You’re basically expecting tax payers era to do your job for you. The current probable process allows for executors to execute and for beneficiaries to sue them to hold them to account. What you are suggesting regarding oversights and checks would be very expensive to implement.

The disincentives (huge legal costs and a criminal conviction) are enough to put most people off committing fraud. What more do you expect? Unless you are expecting a government department to take on administration of estates to remove the human element?

The costs vary depending on how good a solicitor/barrister you use but the court orders the loosing party to pay them so long as you haven’t been unreasonable so it’s a bit immaterial. At any rate where cases of fraud are concerned it usually doesn’t go that far unless the property has already been dispersed and the issue comes down to tracing.

It’s not very appropriate to point fingers at the process when you have been too lazy to follow it.

peridito Fri 08-Mar-19 16:03:27

@GregoryPeckingDuck there's really no call for describing me as "too lazy " .Why are you are so rude ? Why do you think I am lazy ?

I'm not going to apolgise because I wasn't aware that suing the executrix was an option .We tried v hard to resolve the matter but when that failed I went to a slcr ,provided endless detail and paperwork and worked with her to get a result . You seem to be calling me lazy because I didn't sue .Which TBH seems to me that you just want to pick a fight .

I'm not pointing fingers at anything. Perhaps I should apologise for expressing the view that the probate system needs overhauling .It seems to have riled you ?

I'm still shocked that it is so easy for executors to do what they like .

Xenia Sat 09-Mar-19 09:40:09

Of course you can take a view it shoudl be reformed but it would be too expensive for the sate to take over winding up estates - that's the problem.
Anbout 600,000 people die each year. I spent 100 hours winding up my father's estate ( I kept a note). Most will not take that long. Say they take about 30 hours and the Government could get good staff to do it for £20 an hour 600 x 600,000 - my calculator won't do that sum but it is too big a number to change that system.

So we are left with familiies or paid executors doing it and with a right to go to court if there is enough money at stake to make that worth while I suppose.

peridito Sat 09-Mar-19 14:13:18

I was not suggesting that the state be responsible for winding up estates .

I hestitate to offer any suggestions as I'm not enjoying the judgement of me on here but surely someone bright could think of some mechanisms to make it more difficult for executors to administer the estate in a dishonest way .

Could estates over a certain value require some input from a solicitor who could require sight of the will and make the final distribution ?
With the cost being met from the estate ? for example ???

Budsbegginingspringinsight Sat 09-Mar-19 14:22:57

Gregory how can you defend your rights if you don't know what your dealing with.

How would you piece together an emptied out home? How would you get back money you never knew existed from several Bank accounts? Or claim for jewelry that was taken you never knew was there.

Missingstreetlife Sat 09-Mar-19 14:23:46

I think they do randomly check a small number.

Budsbegginingspringinsight Sat 09-Mar-19 14:25:50

The law in general is a closed shop, even more so with removal of pro bono solicitors ...

You used too be able too access advise far more easily from cab
There's used too be solicitors in courts... again free advise.. short but so helpful.

Lay public have Very little chance of getting anywhere..

havingtochangeusernameagain Sat 09-Mar-19 15:05:00

The law in general is a closed shop

I don''t know about Scotland but this is categorically not the case in England and Wales. The legal profession is opening up to alternative business structures all the time. The problem is the loss of legal aid and therefore "high street" solicitors. But it's nothing to do with lawyers being protectionist.

Xenia Sat 09-Mar-19 16:10:36

The other way round now - anyone can do most legal work even without a single qualification. It's getting quite dangerous to the public who chink they have a solicitor but have some kind of unqualified legal adviser instead or use a charging |McKenzie friend in court or unqualified conveyancer or will writer.
Also anyone can give probate advice if they want to as far as I am aware and of course can always represent themselves.
Most law firms do some work for nothing which is probably more than can be said for my plumber or painter.

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