Probate Question

20 messages
24/07/2012 at 11:41

A couple make a will and in it they leave a sum of money to a nephew who then dies.  A few years later the husband dies and a few years after that the wife.  Should the executors pay the sum mentioned in the will to the nephew's next of kin or did the bequest become void on the nephews death.  There was no mention in the will of the bequest being passed on.

24/07/2012 at 11:51

I "think" the bequest becomes void but I'm no expert here - although I believe the executors do have some discretionary rights over these matters??

best consult a probate lawyer to get correct info

24/07/2012 at 12:10

I "think" fb is probably right, there is no automatic assumption that the inheritance passes to the next of kin.

My OH has recently had the same discussion over the will of his mother in terms of the line of inheritance:

So, OH will inherit the family house when his stepfather dies and if and when OH dies, then I would inherit the house.... but ONLY if OH doesn't die before his step father and HAS actually inherited the house himself.

If OH dies before his stepfather, than there's no automatic assumption that I'd inherit, unless that was actually specified in his stepfather's will.

What I'm not sure about is who does inherit under those circumstances.... Presumably the fact that there is no valid will (and no remaining spouse ofrdirect next of kin) means that any living blood relatives have a right to claim?

 

 

 

 

 

Edited: 24/07/2012 at 12:12
24/07/2012 at 13:05

FB, JF - that's what I would have thought, however these things can sometimes surprise.  A chat with the solicitor I think.

24/07/2012 at 13:59

im probate lawyer - bequest become void as the nephew predeceased them both. 

24/07/2012 at 14:01

feel free to PM me if you have any other questions!  happy to help

24/07/2012 at 16:26

Hello trixeepoo, Oh dear.  The executor has sent out a cheque to the mother of the nephew (my aunt).  What's your thoughts on cheques to beneficiaries being drawn from the executors personal account?  I would assume that it's normal practice for an executor to open an 'estate account' and put all assets into that account and payout from that account.  Also if there are beneficiaries who are bequeathed fixed amounts, should they recieve interest on that amount and if so would that be from when probate is granted or before?

Lot of questions and no doubt there will be more.

24/07/2012 at 16:50

the nephew is not entitled to anything unless there is provision for this in the Will.  his next of kin certainly wont be entitled so the cheque should be cancelled!!  s.33 Wills Act 1987 only automatically applies to children/issue of the deceased if they predecease the deceased - not to other relatives such as nephews. 

an executors account should definitely be set up - you are correct.  i would not advise that any debts/legacies are paid from the executors personal account.  in any event the cheque should be cancelled.

If you are entitled to a fixed amount of cash from an estate, you are entitled to interest on that amount from the first anniversary of the death. The rate of interest is fixed by the court.  if the legacies are paid out before this time then no interest is payable. 

Hope this helps!

24/07/2012 at 17:22

Another forumite taking advantage - what if an (co)executor uses the account the estate funds were put in as if it was their own (was just in his name for practical reasons 3k in six weeks).  Without paying any estate bills beyond the funeral., or mortgage payments while there were funds left, or in getting the house ready for sale. 

Then down the line tries to force a cheap house sale/eviction on the other co-executor who is the only reason said property wasn't reposessed and fully intends to get house ready for market as soon as finances allow buts wants to market it in as best condition as possible.  Both Co-executors are also the beneficiaries

24/07/2012 at 17:23

There are some things you should never admit to being on forums like this one

25/07/2012 at 09:00

Hi Maddy

are there still estate bills outstanding in this one?  the executors are obliged to settle all estate bills before distributing any sums to the beneficiaries - even if the executors and beneficiaries are one and the same.  Beneficiaries are not entitled to anything until all debts are paid and both should act honestly and faithfully in accordance with the terms of the Will.  taking money from an estate when you are not entitled to it is essentially fraud.  I would suggest that the executor who isnt acting improperly takes some proper legal advice in this one. 

25/07/2012 at 12:14

I did - and I was told that as he is a joint beneficiary it would be hard to deal with ideally I want him off the grant of probate so I can deal with things properly and without the additinal stress of him trying to gain control of the house sale.  He did this before probate was granted infact he took £900 straight out of my mother account within six days of her death and before we had arranged the transfer of estate funds to an account that due to his location he was the sole name  - he then proceeded to spend another £2K in less than six weeks down at Tescos - I have the statements.  Had I known about the £900 I would never have agreed to soel name on the account for estate funds.  He leid about it as well at the funerla he claimed that the funeral had took all the money which it hadn't he had

Yes there are still bills outstanding - I have thrown money at the mortgage to try and stop the property from repo - its been a rough ride

25/07/2012 at 12:34

I can't help (but it sounds like trixeepoo is the best person to talk to), but I just wanted to say ((Maddy)) I'm sorry to hear you're having such a tough time with the other executor.

My parents have been very strict about their will and how it will be all be executed upon their death so that's one less thing for us all to worry about.

25/07/2012 at 12:38

this is awful!  but surprisingly common.  you will need to apply to the Court to have him removed as Executor and will need evidence of his misconduct.  As Executors, you are obliged to keep an account of the estate funds, debts paid etc.  and show this  to the beneficiaries. this estate is slightly complex in this regard as the executors and beneficiaires are one and the same but in your position as beneficiary you can apply for him to be removed.

all debts should be paid from an estate before any distribution of assets is made to beneficiaries so he should not have taken anything from the estate funds for personal use until the estate is properly finalised.  anything that he has taken should be taken into account when the final estate is distributed. 

If you did not instruct a solicitor in the first instance to assist you in this matter then i would advise you to go to the Court that issued the Grant of Probate and get them to confirm the procedure/docs required to make an application to have him removed.  in the meantime i suggest that you perhaps contact the bank with whom the executors account is held and show them that you are joint executor and request that any payments made from the account are only done so with the authority of both of you. 

this is not a nice situation that you are in and could be difficult to sort out.  keep all docs that you have that show misconduct.  in any case, the bank holding your mother's account should not have allowed any transactions to be made on her account once they are notified of her death.  was this done? 

25/07/2012 at 13:10

No need to do that anymore the account is empty and in overdraft - he managed that in six weeks as well

I have been told that having him removed from the grant will be expensive.  This happened a while ago now and while I have fought to keep on top of things he has satonhis arse done nothing and now is acting like a spoilt brat because I want to make sure the house price is maximised

He has instructed a solicitor to force sale I have never said i wasn't going to sell I just wanted to maximise the price - he wants a quick sale because he can't organise his own finances and intends to levy costs against the house

There are othe creditors that can't be paid until the hous ehas been sold but they are all quiet at the moment so no pressure from them yet and I will be negotiating with them anyway - especially one as the biggest outstanding debt apart from teh mortgage had PPI on it

25/07/2012 at 13:17

Hello trixeepoo, thanks for all that.  I've just had to tell an old lady she can't cash her cheque.  She received it with a letter along the lines of  'we wanted you to have this'.  Do people do these things deliberately or are they just stupid?

It was a simple will and an estate consisting of just 2 bank accounts but it's taken 20months to get to this point.

26/07/2012 at 10:27

Just one more question.  Should it become necessary to challenge an executors actions through the law, are the costs taken from the estate?

27/07/2012 at 09:00

not necessarily, depends on the outcome.  an executor, if found liable for misconduct etc, will be expected to pay the costs themselves. 

27/07/2012 at 10:47

Ok, and if they win it comes out of the estate?

Btw feel free to ask for advice on your garden should you have one.

Thanks.

27/07/2012 at 17:12

it really will be for the Court to decide in respect of costs - but it is unlikely that they will come from the estate in either way. 

and thank you i shall!  i dont have a garden as such but a lot of things attempting to grow in pots - and generally failing! 

let me know how things go with this - if you need any other info i am happy to help.

have a lovely weekend.


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