Probate - trust for child with special needs

ClmAlfie

Hi

Asking for a friend
A father has died and Willed his property etc to his special need child who is an only child. Child is only 15yrs old
Mother died few yrs ago
An aunt has temporary guardianship of the child
The solicitor is an executor and trustee and wants to sell property. Friend and aunt don't want this happening
The solicitor is now refusing to take their calls or talk to them.
As far as they know, no probate has been applied yet
When the solicitor does apply, how long does the probate takes (Cork)
Can the solicitor sell the property without probate

They are not going to contest the Will, they just want to make sure the child will be looked after for the rest of life. They're feel renting out the property rather than selling would be better cos there will be income for the child

Any advice would help
Thanks

Caranica

Selling the property will provide a more secure income for the child. Rent is not guaranteed, property will need to be maintained and non paying tenants can take years too remove, not to mind untold damage that can be done to rental property. Sell, sell, sell.

Jim2007

ClmAlfie wrote: »

They are not going to contest the Will, they just want to make sure the child will be looked after for the rest of life. They're feel renting out the property rather than selling would be better cos there will be income for the child

Any advice would help
Thanks

A portfolio consisting of a single property is considered high risk in the extreme and a trustee would be derelict in their duties to allow it to continue.

Contrary to what Irish people think, all the evidence suggests that property performs very poorly over the long haul given the risk profile.

s1ippy

The OP wasn't seeking opinions about what they should do, they were looking for information. Additionally, I would not heed the advice about property risk as especially at the moment, housing is at a premium.

Probate can take from six months to several years depending on how complicated things get. At the moment, legal processes can be slow-moving.

If the solicitor is not acting in accordance with the will or obstructing the wishes of the guardian of the child who is responsible for decision-making, I believe a complaint can be filed with the Law Society of Ireland.

Peregrinus

Given that the child has special needs, the will presumably creates a trust for the benefit of the child, provides for who is to be trustee, and provides for the powers of the trustee.

It's not possible to answer questions about whether the solicitor (who, it seems from the OP, is trustee of the trust) can or should do what he proposes to do without seeing the terms of the trust, which will be set out in the will.

So, child's guardian needs to see copy of the will. And needs her own solicitor to advise on interpretation and application of the terms of thw ill; this is a very technical area of law.

Assuming the will gives the trustee a power of sale of the property, trustee needs to exercise that power in the best interest of the child. Ultimately it's trustee's responsibility to make the best judgment he can about what the best interests of the child require, but he should consult the child's guardian, and other significant adults in the child's life, to inform his judgment about that question.

s1ippy

I agree, the issue here seems to mainly be that the solicitor is not receptive to contact from the guardian. At this point, they would need to enlist their own solicitor to pursue correspondence.

I doubt it is possible for the assets to be managed without the permission of those named in the will? Otherwise there would be solicitors the length and breadth of the country with extensive property portfolios acquired in shady circumstances and a lot of money just resting in their accounts, with benefactors unable to contact them.

This is why I suggested involving the LSI, the solicitor should be receptive to the guardian and certainly not take any action which is against their wishes. Although I'm very much open to correction.

Peregrinus

Ultimately the solicitor's resonsiblity is to the child, not to the guardian. And his duty - subject to what the will says - is not to do what the child wants, but to do what is in the best interests of the child. That's a complicated decision with many factors feeding into it; it certainly can't be boiled down to considerations of the investment characteristics of residential property.

The guardian should certainly be involved, since they will have a familiarity with the child's needs, wishes, interests, etc that probably no-one else does. But it's signficant that, per the OP, the father didn't appoint the guardian as trustee, which he could have done. So the father didn't want this decision made by the guardian; he wanted it made by the person he did appoint as trustee. The trustee not only doesn't have to defer to the guardian; he has a responsibility to make his own decision about what's in the best interests of the child. That's his whole job, really.

nuac

Mod
Title amended

Victor

ClmAlfie wrote: »

An aunt has temporary citizenship

Guardianship?

ClmAlfie

Victor wrote: »

Guardianship?[/quote

Oops, you're right!

Have amended it

Thanks

ClmAlfie

Hi guys

Thanks for all your comments, it's very helpful
I have shown all the comments to the friend and aunt

With the solicitor refusing to speak to them and the whole thing is complicated. The aunt have decided to get her own solicitor and hopefully this will be sorted