Why would a (professional) executors refuse to apply for probate?

[Kaloobear]

A bit of background:

DH's mother passed away over a year ago. His aunt (her sister) and DMIL's solicitor were named as executors on the will. DH and his brother are the main beneficiaries.

DMIL had three properties, two of which were worth less than the mortgages on them. The solicitor has returned these to the bank (sorry, I know that's not the technical term).

After a year of toing and froing NOTHING else has happened. The solicitors have-now-said it is 'inappropriate' for them or DH's aunt to apply for probate and suggested DH does it instead.

But-they have already 'intermeddled' have they not?

They are refusing point blank to say WHY it's 'inappropriate' for them to apply.

DH is at the end of his tether. The final property is not worth much. It's not about the money. It's about the fact that both DH's aunt and the solicitor are refusing to do their job AND refusing to explain why.

Aaaaargh!! It's so frustrating. From our research it looks like DH couldn't even apply for probate anyway without the executors renouncing their executor-ship? Which they haven't even mentioned.

At this point I barely believe they're real solicitors.

Any suggestions at all very gratefully received. I think we know that really we need to seek legal advice, but we just can't afford it at the moment.

Why would they do this?!

Argh, sorry, crappy grammar in the thread title.

Bump.

Bump.

I don't know why they wouldn't. Perhaps they are worried about not being remunerated for their time and efforts given the other properties have been returned to the bank for want of equity.

The Aunt can apply for probate, or your husband or his brother can apply because none of the named executors are willing to so apply. Have a google of "executors refuse to apply for probate can I" and see what turns up.

Found this online:
www.direct.gov.uk/en/governmentcitizensandrights/death/preparation/dg_10029716

If the executor can't or doesn't want to apply for probate
An executor can also appoint someone else (apart from a solicitor) to apply for a grant on their behalf. This person is called their 'attorney', and must fill in form PA1 and send it to the Probate Registry. The attorney must include a signed letter from the executor explaining that they want the attorney to apply on their behalf.

Will the solicitors do this? Is it possible that the estate is in debt so they don't need probate because the sum of the estate is so small? I don't know, I'm just guessing but didn't want to leave you unanswered!

Hi. This is my field, and I agree you need more info.

It sounds as if they have intermeddled and will struggle to renounce. Mind you, without probate, I'm not certain how they have managed to hand the properties back, unless the bank just repossessed them.

The only time I refuse to take a grant is if I gave a conflict of interests (and I don't gave to say what it is), or if there isn't enough money in the estate to pay legal costs. Could either apply?

Sorry "have" a conflict ...

If they won't apply for a grant, then they won't grant a power of attorney, as they would still be ultimately responsible.

Ask if they will renounce and hand the file to you?

The remaining property is worth about £90k but has a mortgage of about £30k on it. DH has corrected me about the other two properties-they've been repossessed.

Do you think the £60k left in the house could be taken by the banks that are repossessing the other two, leaving not enough money to pay the solicitors' costs? Maybe that's why they don't want to apply?

Really appreciate the replies.

Yes, that is possible. It is however possible to wind up an insolvent estate. The legal costs generally come out first, and the creditors then get paid in a specific pecking order.

Why won't the aunt deal with it? Has she said?

Nope. She's been awful to be honest. She arranged DMIL's funeral and said it was the least she could do to give her sister a good send off etc, then had the bill sent to DH He's been trying to be understanding etc but it's getting ridiculous.

So if DH applies for probate and there's not enough £ in the estate to pay all the creditors are DH and his brother responsible for the shortfall or is it written off?

The funeral expenses are a priority debt and should be paid out of the estate (send the bill to the solicitor!), but if there is no estate to distribute once the remaining bank debts are paid off, the brothers do not have to pay the shortfall and it is written off.

DH paid for the funeral when he got sent the bill. His aunt said he'd get paid back when the properties were sold. Ha!

If it is the case that the legal bills will get paid first out of the estate I don't really understand what the solicitor has got to lose in applying for probate and getting this all wrapped up.

I also don't understand why (assuming this is their reason for not wanting to apply for probate) they won't just tell us.

Yes, it's written off - provided you take out Statutory Notices.

I usually write to the creditors, send them a copy of the accounts, and get everyone to agree before you distribute.

First step - ask solicitors what they are doing. Will they renounce?

DH keeps trying to call the solicitor and they avoid the phone. It's bizarre. He's also emailed them the same questions 4 times and they reply but totally avoid answering the questions. We'll try calling again on Monday (apparently the solicitor in question is out until then-except he's always out, or on the phone, or unavailable and never, ever calls back).

Is taking out statutory notices something the solicitor would have to do or does DH do it? We really want to avoid applying for probate ourselves as we are so busy buying a house/moving/working/baby etc and thought it was their job to do it. also so angry that they've taken a year of avoiding questions and the phone only to turn round and refuse to do it with no explanation. If they will renounce should we apply for probate do you think? I just don't see why DH should have this stress. His poor mum told him she'd left him and his brother three properties and made his aunt the executor so he wouldn't have the stress of dealing with it when he was mourning her. (She'd been ill for a long time and knew she was going to die.) I feel so bad for her that not only is the 'inheritance' she worked so hard to provide worthless, but also her sister and solicitor who she trusted are refusing to do their jobs and putting it all on DH with no explanation.

Agree it's a nightmare. Tell you what, I'll reply properly tomorrow, from work when I have my "legal" brain on. X

Thank you so much-really, really appreciate it.

aaaaaaaaaaaaah! Just typed long reply and lost it!

Basically, executors must either renounce or deal with the estate in a reasonable time. Generally, there is an "executor's year" which means that they should at least get things moving within this period of time. There are also numerous "fiduciary duties" to the beneficiaries, which also state that things must be dealt with in a reasonable timescale.

So, the aunt must be warned that she is at risk of getting itno serious trouble if she doesn't eitehr renounce, or take the Grant.

The solicitors - your DH should write to them, stating the above, and asking for an explanation, to be given within a reasonable time. Copy it to the senior partner. If still no joy, you can consider contacting the SRA, who deal with solicitors' conduct.

It is possible that they will ask that you seek your own advice, and take civial proceedings, which you may not want to do as it is hassle/costly, but if you keep pushing and tell them you will contact the SRA, it may push things along.

Let me know what they say!

Sittinginthesun I can't tell you how much better it makes me feel to have some sensible advice. Am going to copy your last post and send it to my DH. Thank you so much.

No problem. Have a good weekend.

DH and I spoke to the solicitor today and it's more complicated than I thought. There seem to be two separate issues though he said they're linked but couldn't explain how...

1. One of the properties was repossessed but the other one's mortgage company went to court to get it back and named the solicitor and DH's aunt in the court case. For this reason they both feel they don't want to pursue probate. This doesn't make much sense to me-they weren't named as individuals but as the executors so it's not like they're personally responsible for DMIL's debt! He just said that was their decision.

1. DMIL made a gift to DBIL a few years ago of a fairly hefty sum-about £30k I think. The solicitor said that if there is a shortfall on the estate as a whole the mortgage companies could go after that money, which is another reason not to apply for probate-BUT are suggesting to DH he do it instead. To my mind either there's a big risk to DBIL or there isn't-I don't see how it matters who does the application. I think if the mortgage company do go after that money the solicitor and DH's aunt don't want to be responsible for ruining DBIL's life (he'd have to sell his house to give the gift back) but are quite happy for DH to be responsible. At any rate they haven't even asked him how much the gift was so until we know that nobody can apply.

A further complication is that we strongly suspect that DMIL gave her sister (the aunt who is the executor) a large gift herself, and she doesn't want to say so as she doesn't want to give it back. If we suspect this but can't prove it either way then we can't apply for probate anyway as we can't get the details of gifts wrong or we'd be in big trouble.

So I don't really know where we're at now! I think we just need to think.

I can see why they wouldn't want probate. They are doing it not as enthusiastic amateurs but as professionals. They can't make a living if they do it for free, and if there is no equity in the property then how would they get paid? You mentioned earlier on that there were 3 properties. What's the position with the 3rd one?

The third one should have about £60k in it once it's mortgage has been paid off. The question is whether that £60k will then be entirely taken up by paying off the other two... But either way they would get paid first, so that shouldn't be an issue.