FIL died at the end of July and he left a will.
He didnt own any property outright - the house he lived in was owned by a family farm business of which he held roughly half the shares.
Like most farmers he was asset rich and financially not - all the money in his bank account will be used to pay outstanding care home fees at administration. and wont even cover that.
FIL's will leaves equal shares to his son, his daughter and his grandson.
Daughter is disabled and relies on state benefits - currently I believe ESA and HB, and she lives at the other end of the country and is very difficult to communicate with due to no internet, and only a very old mobile that does, or does not, pick up messages, plus MH issues.
When FIL wrote his will it was possible to put shares / assets into a discretionary trust, which would have meant that SILs shares could be held in there, preventing the family farm being sold, and not affecting her benefits. I assume he thought that she would be paid an income from the trust, despite the fact that the farm just about keeps afloat and has never paid any shareholder profits.
However rules about discretionary trusts changed this year and this is no longer the case. I am aware that there are disabled person trusts, however I know that SIL would not agree to that, and I am not even sure whether she receives PIP. I know they are transitioning everyone from income based ESA over to UC this year.
Previously, when FIL was alive, the DWP disregarded the shares that he held outright, as did the council for his home care, and assessed him only on his pension and attendance allowance, as they considered that as he held shares in the business that owned his home, and earned no income from the shares, that is was the equivalent of him owning his home, and thats not an asset they consider whilst he is living at home. It would appear that this is totally at the discretion of DWP, and whether shares are in trust or not in trust makes no difference. We offered SIL to come and live in a property on the farm and assisting her to ask for this same discretion to apply - she would no longer need HB, but hopefully would still be entitled to ESA/UC/LCWRA
There is a letter of intention that explains the above reason for the shares being placed in a trust, with SIL/DP and the solicitors listed as trustees and executors. The letter also states that if the trust serves no purpose then it should be wound up.
We feel that the time constraints and costs of setting up the trust and immediately dissolving it seems like unnecessary procedure, given it cannot perform the function that it was created for. She was told by CAB that her benefits would be stopped in Feb, due to the trust needing to be set up within 6 months of FIL death, although there is no chance that letters of administration will be ready at that point, so any trust would lie empty, so I am not entirely sure if that is true.
We wrote to the solicitors and SIL to suggest dispensing with the trust, but she has not replied to us or the solicitor. She also has not sent any documents to prove her ID to the solicitor since they requested in August.
We had hoped to do probate ourselves, again due to the fact there is no cash to be had for legal bills, but in the only letter that she has sent, SIL said she wanted the solicitors involved and she refused to surrender executorship, despite then not corresponding at all since then. We did propose sending all paperwork through to her so she could see everything - we have a file and invoices / bills for everything since POA kicked in a few years back to allow DP, who is a director, to continue to manage the farm business, as his father later developed Alzheimers.
As SIL was not in agreement with us doing the probate paperwork, the solicitors were stuck between 2 differing views and resigned as both executors and trustees. We said we were happy to have them as executors if it gave transparency to SIL, but they have written today to say they are still resigning, and that if we wanted them to act we would need to instruct them personally, making DP and SIL liable for any bill, rather than the estate. They made no comment about whether we are able to simply do away with the trust, if the letter of intent implies as such, so we are still in the dark about that and obviously have no agreement from SIL about it. They said that they still did not have proof of identity from SIL. I think they think its going to be a mess and they are worried it will be very expensive if they are involved and will force us to sell the farm to pay their bill.
we feel really stuck. We dont know if we can dispense with this trust or not. We cant get any information from SIL. We have written to her and the solicitors have written to her. What happens if we just dont do it - will the letter of intent show that it wasnt needed? I asked if we needed a deed of variation, but am unsure if thats just about distribution once letters of administration are issued, and unsure if it would apply at this point in the (non) proceedings. and beyond that SIL will need to sign it too as being in agreement.
I think I probably CAN do the probate if I really need to - our accountant has said she is happy to go over all the figures but its complex being shares rather than a straight freehold farm.But mainly if SIL is supposed to be an executor, how the hell is that going to work if she cant even get her ID to the solicitors and wont answer any question? And has no email for the links, etc needed for administration, etc. Is there a time limit on probate? I can see this just being stuck in limbo forever.