Probate and Will

mal1

If a will total is less than the valuation of the house which is on probate and part of the will then does the executor still have to get the house sold for market value.

For example, the will is 100,000 (when all beneficiaries are paid) and the house is worth 150,000. Can the executor just sell the house for 100,000 and pay the beneficiaries their share or is he/she obliged to sell the house for as much as possible and divide the extra to all the beneficiaries.

Thanks.

coylemj

Do you mean the deceased left specific amounts of money to the beneficiaries with the assumption that these would be funded from the sale of the house plus whatever cash was in bank accounts etc?

If that is the case then the house needs to be sold for the best possible price which typically means by public auction, then everyone gets their bequests and if there is a balance left over it gets distributed as if the deceased died intestate, this is known as Partial Intestacy. If the will was drawn up by a solicitor it's probable that someone was named as inheriting the residue of the estate (i.e. after the specific bequests have been distributed) in which case they will benefit by the shortfall between the sum of the bequests and the value realised from the sale of the house, such a person is known as a residuary legatee.

If there is no residuary legatee then the money left over needs to be distributed as if that was the full estate and there was no will i.e. the deceased died intestate.

Section 74 of the Succession Act 1965

74.—Where the will of a testator effectively disposes of part only of his estate, the remainder shall be distributed as if he had died intestate and left no other estate.

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0074.html#sec74

mal1

coylemj wrote: »

Do you mean the deceased left specific amounts of money to the beneficiaries with the assumption that these would be funded from the sale of the house plus whatever cash was in bank accounts etc?

That's correct and thanks for taking the time to answer the question.

The situation in question involves a family member. I believe the will was drafted by a solicitor but I don't know about a residuary legatee. The executor wishes to keep the house in the family so they want to just sell it to another family member at a price that will cover all the beneficiaries. This will be under market value so I was telling them that I didn't think it would be possible. I was thinking that the executor would be obliged to sell for market value.

coylemj

In the case you describe, it would be unusual for someone whose major asset was property to simply reel of a list of monetary bequests, especially if they used a solicitor. If the will was drawn up by a solicitor then it's almost certain that there is a residuary legatee because solicitors would be aware of the pitfalls of not having someone to scoop up the residue.

When property is involved, it makes more sense to allocate the bequests in percentages, otherwise you risk falling into the trap that often happens where a will is drawn up years before the person dies, everyone is left amounts of money and the residue is divided up among the grandchildren or left to a nephew in Australia, then years later when the property is worth ten times the value when the will was drawn up, the residue could end up being worth more than the sum of the individual bequests.

A solicitor would advise a client of the risk of this happening and would typically recommend that while it's ok to leave specific amounts of money to the nieces and nephews, the principal beneficiaries should be left either whole assets or percentages of assets in the case of houses and farms.

The executor would be obliged to obtain the best possible price when selling assets, otherwise he/she would be liable to be sued by the person(s) who lost out by the act of simply offloading the house in order to only meet the monetary bequests.

mal1

ok, thanks mj.

I'm not aware of the entire details of the will but I'm sure that it is a list of monetary bequests. The executor thinks she just needs to get enough from the sale of the house to cover this list. I will advise her to think again and do a little more research since she isn't getting any legal assistance.

Carlow52

Rather than start a new thread i will use this one.

I also am aware of the 'no advice' rule here

The situation I have is as follows.

I am one of 3 executors named in a properly drawn up will by a firm of very reputable and (expensive) solicitors.
The other 2 executors are children of the deceased and they have decided not to engage the solicitors and are doing it themselves and excluding me from the process.

I understand you don't need a solicitor to apply for a grant of probate so they are well within their rights to go it alone.

My concern is that the other residual beneficiaries will sue me if they feel the other 2 have short changed them.

Is it just a simple majority of the executors is all that is required to get any paperwork done and that I am basically left out of the process.

Is there any time limit on having to apply for a grant of probate or can they just run down the estate and have the day of reckoning 10 or more years down the road.
Thanks

coylemj

That is a completely different scenario, you need to get legal advice from a professional. If you are concerned about being sued and since there are two other executors, you can wash your hands of the matter by renouncing your role as joint executor, see a solicitor.

You can renounce probate under section 17(c) of the Succession Act 1965.

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0017.html#sec17

Carlow52

Thanks for the reply, will seek the advice you suggest

In relation to the other 2 questions in the my first post have you any links to help with:

Is it just a simple majority of the executors (3 in this case) is all that is required to get any paperwork done ?

Is there any time limit on having to apply for a grant of probate?

Thanks