Tenancy in common/forced sale advice needed.

[thornrose]

My ex partner, father to my dd, died just over 2 years ago. After he died I was informed by his brother that they had joint ownership of a house.
I decided after about a year to explore my dd's rights regarding the property and went to a solicitor.
My solicitor wrote a couple of letters to the brother via his solicitor. The brother is basically furious with me, in a nutshell and does not want to sell.
My worry now lies with my solicitor. He never gets in touch with me, and things have got to a standstill with no apparent action.
I contacted him for an update and he seems concerned about having to take his fee out of my dd's inheritance, something he's never mentioned before. We left it that he would contact the Court of Protection for advice the but he warned me they are notoriously slow.
I get the feeling the solicitor does not want to persue the case, he seems vague and disinterested. If he decides he no longer wants to persue it then I am really scared how much his bill will be and how the heck I'm going to pay it. Then part of me says surely he would just point blank tell me if he doesn't want to go any further with it!
Sorry this is so long!

The main thing I meant to add was, does anyone know if a solicitors fees be taken out of a minors inheritance!

IME normally if a sale is ordered on a property held on trust the costs of the litigation are paid out of the proceeds of sale, prior to the equity then being split as per the agreement between the original parties. Occasionally if one party has been particulary unreasonable in not allowing a sale, the court might order that the costs of the litigation are paid out of the losing parties' share - this is more likely if cost warnings (if you lose we will ask you pay costs) are given.

Often a person remaining in occupation will assert they should be allowed to remain, and will hold the property in trust for the other beneficiary. They may even assert they have a life interest which, whilst they remain alive means they should not leave the shared property.

Unless I am horribly out of date, I do not see why your daughter needs the court of protection involved, as you can be her litigation friend. The official solicitor who acts for protected parties (people incapable of conducting their own litigation by reason of lacking capacity due to infirmity or being a child) will only do so when there is no one willing or able to step forward as a litigation friend, and as the child's mother I cannot see why you cannot do this?

Ask your solicitor - they work for you/your daughter

My solicitor suggested/virtually insisted on involvement of the court of protection as the only option.
I am feeling SO uncomfortable about this whole process it is affecting my judgement. I feel guilty and awkward because someone has died and I am getting into fights over money. My dd has SEN and I don't own my own property, this is her one chance to have a substantial amount of money to giver her security in the future.
I find my solicitor quite intimidating and I am constantly worried that he is going to ask me to pay what I owe so far.

YesMaam - thanks, that is very helpful and has given me some idea of what exactly to ask my solicitor.
Another thing my solicitor constantly tells me is that the process of forcing a sale is going to be extremely long and drawn out. I feel like he's almost putting me off going down that route.
My dd is 12, her dad died when she was 10, I will have no financial help for the rest of her life. I don't think I'm unreasonable to try to get what is rightfully her inheritance but I'm starting to wonder if I can actually "fight" for it!

Process of forcing a sale under TLATA (the Act that governs this) IS drawn out and whether or not your solicitor is prepared to wait to collect his fee from the proceeds of sale is a matter for his firm. If he is unwilling then I'm sure you can find another who is.

However, the fact that it will take a long time should not deter you of itself. I am not a specialist in this area but I am a litigator and as a guideline, in general you will not get to a final hearing in less than 12 months. It could take longer than that. But if your daughter's claim is a good one, it's worth pursuing. Perhaps look for another solicitor. You need to feel yours is on your side and up for the fight.

Also, you do not say if your DD's dad left a will or not. If he left his share of the house to DD then things are more straightforward as it is just a question of enforcing her right to part of the proceeds of sale under TLATA.

If he died intestate then his assets will pass on the statutory trusts (which essentially means that your daughter should get them - provided that she is his only child). The administrator of his estate should have administered it in accordance with this so that your DD's dad's share of the house is held on trust for her and again, she can enforce a sale (with you as litigation friend) under TLATA.

However, if he left a will and left his share to someone other than DD, then she would have to claim under the Inheritance (Provision for Family and Dependants) Act 1975, essentially claiming that his will should be varied as she should have been provided for. From what I recall from my training contract, such a claim has to be brought within 6 months of probate being granted, so you would be out of time now. In some cases it is possible for a court to hear a time-barred case but you would need specialist advice on this.

I am scratching my head a bit about why your solicitor would be talking about the Court of Protection. The CoP deals with assets of people who are still alive but lack capacity. So, old people with dementia, or children. Perhaps he is thinking ahead to the fact that any money your DD does get will have to be administered by the CoP until she is of age? But I don't understand how that affects his view of the merits of the claim. That would only affect what happens once the claim succeeds. Has he explained to you what he means when he refers to the CoP?

First of all there was no will and she is his only child, she is 12yo.

The brothers solicitor said this re court of protection " It is not clear to us why the child's mother cannot act as trustee on this occasion without reference to the court of protection which is a situation we normally encounter. There does not appear to be any obvious conflict of interest between the parent and child and this would certainly save costs."

In a nutsell my solicitor said CoP was to protect me as I would be responsible for the money until she reached 18 (or words to that affect)

My solicitor wrote " We would expect your client (brother) to purchase our client's share of the property after a true valuation or alternatively as the postponement of the trust for sale has come to an end the property must be sold and proceeds divided in accordance with the Trust Deed."

I need to bite the bullet and make an appointment. He charges over £200 an hour plus the usual extra for letters, phonecalls etc. There is no way I can pay him now and start again with another solicitor. He just seems so disinterested.

thornrose PMed you.

Thank you, I will do that.