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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).

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.

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.

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..

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

I think they do randomly check a small number.

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.

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 ???

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 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 .

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 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 ?

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.

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.

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 ?

GregoryPeckingDuck Fri 08-Mar-19 09:43:16

@peridito the law is very clear on what they can or cannot do. It’s up to the beneficiaries to protect their rights (as is the case in every area of law). Do you expect the government to spend tax payers money on making sure you get your due? The law gives you rights and enforce them but the onus is on the individual to defend them. Suing would have been cheaper in that if you sued appropriately the executor would have been left to pick up the costs. The courts are were you seek a remedy. Geberally you will be returned the property or damaged in lieu plus costs. What is the alternative? It was your property. How is it anyone else’s responsibility but yours to protect it?

peridito Fri 08-Mar-19 09:12:01

gemlinmae your boyfriend is very lucky to have such a lovely partner.

And such a wise one . I think your assesment that trying to right this wrong will bring a load of grief . It's hard to avoid feeling that ppl shouldn't be allowed to get away with something .And often there's not much point .

gemlinmae Fri 08-Mar-19 09:05:20

Thanks for the extra clarifications in that case - it sounds like it's more complex to understand what's happened here, and I have no doubt that even asking about this will drag up very strong upset (for one, my boyfriend's parent married the new spouse in Italy where it was a religious ceremony and which he's doubted was an actual legal ceremony) there's too much risk of I'll feelings and upsetting my boyfriend about his parent to mention this so will not be flagging it tbh.

Appreciate the extra insight in why the law seems so unenforced too.

peridito Fri 08-Mar-19 09:04:25

Gregory they can do what they like ,there is nothing to stop them but their fear of being caught out .No scrutiny ,no checks .

And if they are caught out what's the remedy ? Our remedy was to employ a solicitor as our contact with the executrix had produced nothing but lies .

Would sueing have been cheaper and/or easier ? What would have been the process ?

But my point is the way the law is re probate at the moment means that beneficiaries are having to expend money closing the gate after the horse has bolted .

Alwayscheerful Fri 08-Mar-19 09:01:27

Spouses only get the whole estate if the value of the estate is under a certain figure. £250k springs to mind and there may be an updated figure.

GregoryPeckingDuck Fri 08-Mar-19 08:48:01

@badlydrawnperson the main reasons that law doesn’t improve is parliament. No lawyer or judge can overrule the laws made by parliament. So most cases where the law hasn’t changed when it needs to its because parliament hasn’t made an new act. The rest of the time it’s becayse the case has been settled/hasn’t gone all the way to the high court. It really has nothing to do with lawyers. Lawyers have almost no input in changing the law in our legal system.

GregoryPeckingDuck Fri 08-Mar-19 08:44:43

Also if o understand correctly the spouse inherited the whole lot? I’m not sure what the situation is in Scotland but in England and Wales the intestacy rules dictate that the legal spouse gets everything if there is no will.

GregoryPeckingDuck Fri 08-Mar-19 08:42:11

Executors can’t do whether they want. They either have to follow the will or intestacy rules. If they don’t the beneficiaries can sue.

peridito Fri 08-Mar-19 08:35:39

Having had experience of an executrix who just did as she liked and completely cut out 4 beneficiaries I completely agree that reform is needed .

It cost the beneficiaries hundreds of pounds to get their inheritance and although the executrix is a solicitor herself the SRA were uninterested in the fact that she broke her probate oath and lied on probate forms and to the Inland Revenue .Which I would have thought brought the profession into disrepute .But apparently not !

Xenia I had to go into London and swear or sign something as executor of my father's estate. It would be serious offence if I lied on that document.

it might be a serious offence but what's the remedy ?

Xenia Fri 08-Mar-19 08:19:04

I agree that it was not necessarily incorrectly done here. First of all it sounds like was under the older intestacy laws - they cahnged in England. 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. The same goes for proceeds of pensions and life insurance etc which may be left in trust for particular people - usually wife or children) and again are entirely outside the estate as someone said above. In England children don't get a penny if there is no will if the estate is worth less than £250k I think it is - so that is most deaths without wills. Most people don't have even a house worth more than that.

Also in English law if all heirs agree they can agree by deed to vary a will even so in other words agree a different distribution. You could similarly so agree on intestacy so if all those involved agreed it was fair X got the money then that's fine.

If it was abroad then there may be nuances in those laws .

Lawyers don't make the laws. Lawyers are currently lobbying hard about some massive new fees for probate the Government has brought in or is bringing in - from memory about £10k fees to the state in some bigger estates. I had to go into London and swear or sign something as executor of my father's estate. It would be serious offence if I lied on that document. However I agree that present people don't seem to want their taxes put up even higher to support a system where the state collects in the money and pays it out when people die - that would be very expensive indeed to set up and most people have very little to leave so they may not want in effect to be paying for those who are better off.

FrancisCrawford Fri 08-Mar-19 08:09:44

AVery has described the Scottish laws governing intestacy.

Often the situation is not as straightforward as it might appear at first glance.

moveable estate excludes the house (which is heritable)

Averyimportantperson Fri 08-Mar-19 08:02:06

The position is a bit more complex. Your husband would only have been entitled to a share of 1/3 of the moveable estate under prior rights, which would be shared with any other siblings. One third would go to wife.

As regards the house, there may have been a survivorship clause in the deeds transferring the house automatically to the wife.

After all debts are paid and prior and spousal rights are used up, what's left would then get split. Often not much left.

If there was no will then a bond of caution would be required when applying for confirmation. (basically an insurance policy) these would normally only be granted when a solicitor acts. It's more likely that she has never got confirmation.

If you wanted to check the you can contact the local Sheriff Court. They would be able to tell you if confirmation has been granted.

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