Probate

[madasa]

Hi would appreciate some advice please. My partner's mum has just died.

My partner is the only family executor to the will. He has two sisters but they are not executors.

If the solicitors who drew up the will are also executors will my partner have to agree to them carrying out probate or could he take it to another solicitor?

One of the main reasons that he won't attempt DIY probate is that his family is extremely dysfunctional and it would without a doubt be messy and painful. The money for paying for a solicitor will come out of his mum's estate when everything is finalised. Can his sister challenge this and/or sue my partner for the amount by saying that she didn't agree to a solicitor handling it?

Thank you

Could you ask another solicitor what the protocol would be ? I doubt they'd charge to answer ?

Sorry not to be more helpful .Perhaps someone more knowledgeable will come along .

Are there two executors? Your partner and a solicitor? Or is your partner the sole executor?

A practical point, though not related to the question, Find out how many accounts and financial institutions your late MIL had and get a copy of the death certificate for each one. Otherwise you have to wait for the first bank to return the certificate before you can send it to the next one... The extra copies save more time than the extra cost at the time.

You can't get more copies at a later date, or it is very difficult and expensive.

Only the executors have the power to determine whether legal advice is required or not. If the solicitors are cited as executors then they can decline to act, but my understanding is the family can't prevent them from doing so.

Is your partner a beneficiary in the will? If so, being both an executor and beneficiary could be legally problematic - I would seek legal advice just in case.

Thank you for the replies
My partner is the sole executor and also a beneficiary. He has two sisters, one of whom suffers from a mental illness and would not be in a position to be an executor, the other stole a substantial amount of money from his father as he lay dying. This is why he was made sole executor.

He did manage to get an appointment with the solicitor today who drew up the will although he to drive a 180 mile round trip.

It seems his mum was canny, the solicitor was already fully aware of all the issues including the theft of his father's money. She has told him that she can act and the money for her services will come out of the estate.

professor that's a very good point about the death certificates....I had forgotten about ordering several ( I did this when my dad died) I will let my partner know.

Tis a painful business all this stuff....thanks again for your help

Is your partner a beneficiary in the will? If so, being both an executor and beneficiary could be legally problematic

Could you clarify, why is being both a beneficiary and executor legally problematic? I will be a beneficiary and sole executor for my mum, and DH is for his parents. Their solicitors haven't indicated that this could be a problem - just wanted to know what we are letting ourselves in for when the time eventually comes !

I was an executor and a beneficiary as was my sister. I thought most people choose a family member so there would be a high chance that they would be a beneficiary?

I had to go through a contentious probate a few years ago - the daughter sought to challenge being cut out of the will.

Effectively the solicitor advised at the time that independent people should be executors as a will can be challenged for duress or similar if there aren't impartial executors (ie they are beneficiaries). Fortunately she didn't get a penny, vile, money grabbing specimen that she is - but I was since advised to have independent executors who are not beneficiaries. It probably won't be a problem, but given my horrendous experience then personally I'd be making sure there were no grounds to challenge at all!

Sorry - I should also add that it was a potential conflict in our situation because under the rules of intestacy, the estate would automatically have passed to the daughter - but we were friends so it potentially gave rise to an argument of undue pressure as it would be unusual to leave an estate to family friends rather than actual family when they're still alive.

Unless there is reason to believe a conflict of interest might arise there is no reason why a beneficiary cannot also act as an executor and it is quite common for the residuary beneficiary to be appointed as executor.

So in a standard situation shouldn't be an issue but as MummyBex illustrates may not be appropriate in all circs.

You can be executor and beneficiary. This worked for me and my sibling but we are on good terms and there was no family conflict. I would recommend doing probate yourself as its only a 2 or 3 sided form and is quite straightforward. It annoys me when solicitors do it as they ask you for the information so they can put it in the form. If you can find the information, you can put it in the form yourself.

Although if the solicitor is executor that may be different.

Beneficiaries cannot witness a will signing however.