Probate mess and issue with Executor

endofrainbow

Brief synopsis: Parent died but issue with will and therefore awaiting grant of administration. Property to be divided between 4 siblings of which one is the executor. Remaining siblings were asked to write a personal statement as to relations with their deceased father - these were requested via the Executor who said they were asked for by the Solicitor looking after probate. Executor asked they be sent to her and not to the Solicitor. My question I suppose is, should the Executor have requested those statements be sent to her and not the Solicitor? None of the siblings have seen the other's statements - only the Executor. Relations have completely broken down among the siblings and there is no communication. I just find it a little suspicious.

thoughts?

banie01

What type of statement was requested? If there is an issue with a will that precludes it's being actioned as written?

Then the entire will is invalid, as is any executor named in the will. With no valid will, there is no valid executor.

In that instance, the siblings or other beneficiaries under the succession acts could/should arrange whom amongst them is best placed to deal with extracting letters of administration and proceed with probate(or hire a solicitor to do so)

Where the "personal statement" may come from is a garbled understanding of the SA2 form for revenue. To be clear, that form relates solely to the deceased and their assets, liabilities and identity.

The only other information an executor might require for beneficiaries that springs to mind is the details needed for the IT38 required for each beneficiary. Other than that? No details as to the relationship status with their father are required.

Requesting of "personal statements" pertaining to the relationship with the deceased is, to put it mildly a complete pile of Bullshít. Such statements are not required for probate nor for solicitor.

Jim_Hodge

Details of relationship TO the deceased is one thing but a personal statement of relations WITH the deceased is bizzare to say the least.

Claw Hammer

How come there is to be a grant of administration when there is a will? Is it a grant of administration with will annexed.
Ask to see the request from the solicitor in writing before providing anything.

endofrainbow

Thanks for all the comments. My suspicion is that the Executor (who is also a beneficiary) is trying to find out if there might be a challenge to the will and trying to do this by requesting these statements. Whether or not the request came from the Solicitor, I genuinely don't know. The request was asking for details of the relationship between the father and his kids, perhaps to see if there was undue influence by any of the kids.

banie01

https://www.boards.ie/discussion/comment/123408263#Comment_123408263

Just to be clear, you mentioned that the "executor" is extracting letters of administration.

This confirms that there isn't any valid will. Where a valid will exists, the executor extracts a "grant of probate".

Where no valid will exists, the succession acts apply and as such the person nominated to administer the estate, seeks to extract letters of administration.

It may seem like just terminology and jargon but they represent 2 very different positions. Without a valid will, there cannot be a valid executor.

As such did the siblings agree to appoint the 5th sibling as the administrator for the estate? Or did the 5th sibling just assume the mantle and barrel ahead?

On the subject of the personal statements, they are a creation by the 5th sibling and worthless outside of creating strife.

With no valid will and 5 children, the division of the estate is quite straightforward as outstanding debts settled and remainder split 5 ways.

The split is lain out in law and your notion of a challenge? Would rest upon there being a valid will to challenge. There likely isn't one (as evidence by no grant of probate), so I really do think the request for "personal statements" is either the administrator completely misunderstanding what the SA2 is, or an effort to gather info for their own purposes.

Also Claw Hammer offers good insight above.

coylemj

https://www.boards.ie/discussion/comment/123408263#Comment_123408263

What is the issue with the will? Has the executor's solicitor said it may not get through probate?

It's not the executor's place to conduct some kind of sanity check on the will, it needs to be submitted to probate. If it fails and there is no earlier will then the estate will be distributed under the rules of intestacy. It sounds to me like it doesn't really matter if the will stands or not, the four siblings are going to get 25% each either way.

bobburns007

Hi, my mother passed recently and had a will, she left a property to my brother and the rest of her estate to be shared equally amongst the rest of the siblings, rest of the estate includes a credit union account and a AIB account, CU account has €13 K and AIB had €2 K approximately. No problem with AIB releasing money but CU insist on a grant of probate, because my mother didn’t have a nominated person.

My issue is she had a will, so no need for grant of probate imo, but CU said it’s too vague as it doesn’t specify the CU account in the will. Any advice greatly appreciated.

coylemj

My issue is she had a will, so no need for grant of probate imo, but CU said it’s too vague as it doesn’t specify the CU account in the will. Any advice greatly appreciated.

If there is a will then there will need to be probate. The will by itself can't be acted upon until the executor gets a grant of probate.

The issue as far as the CU is concerned is that, if they pay out the money today, someone could walk in on Monday morning with a later will which leave them the money in the CU account. They might be prepared to pay out if there was less money in the account (as happened here with AIB) but for 13K, I can see why they want to see the grant of probate.

Even if the CU was prepared to pay out, your brother will need a grant of probate before he can sell the house or raise a loan on it so there is a good reason to go ahead and get probate done.

bobburns007

thanks coylemj,

You make a good point regarding the will, I didn’t think of that. I knew we had to get it done sooner or later because of my brother inheriting the house but he doesn’t have the funds to pay solicitors fees and we hoping to delay probate for a year or two.

Peregrinus

https://www.boards.ie/discussion/comment/123902396#Comment_123902396

The costs of obtaining a grant of probate (and of transferring the house) are not payable by your brother; they're payable out of the estate. And we know there's at least €15k in cash in the estate, which should be more than enough to pay the likely costs.

893bet

https://www.boards.ie/discussion/comment/123903594#Comment_123903594

Surely the cost of the brother taking ownership of the house do not come from the estate, I assume will be eating in to cash that has been left to other people to allow the brother take ownership of a much larger , seems unfair

Peregrinus

It's the executor's job to obtain the grant of probate and then to distribute the assets of the estate to those entitled. All the costs incurred in doing this are payable out of the estate.

Yes, this does mean they are usually ultimately born by whoever is going to get the residue of the estate — the amount left after specific bequests have been discharged. But this is apparently what your mother wanted and, in that sense, it's not unfair.

(She could have provided in her will that the costs of transferring the house, or even the costs of obtaining a grant of probate, were to be charged on the gift of the house to your brother, so he would get the house subject to an obligation to discharge those costs. But it seems she didn't. And, to be fair to her, that's not the kind of thing that is done very often.)

Jim_Hodge

https://www.boards.ie/discussion/comment/123903602#Comment_123903602

The executor takes care of all that and it does, of course , get covered by the estate.

893bet

https://www.boards.ie/discussion/comment/123903705#Comment_123903705

Seems unfair that another persons inheritance could be impacted that way.

E.g if there was a house worth 1miliom and cash of 200k being split with the house to one person and the 200 cash to the the other that the costs associated with house transfer would get taken from the cash pile leaving a smaller amount for the second person but the full inheritance for the first person. Or am I misunderstanding?

edit above posts explains. So yes unfair but that’s how it works with regards to residual.

What if there was no residual as such and the will was ver specific of 1 house to here. And 200k case to here. And there was nothing in the residual?

Peregrinus

Unless the will provides otherwise, the costs of obtaining probate and administering the estate are paid as follows:

• First, out of any cash in the residue of the estate.
• If there's no cash, or not enough cash, in the residue, then out of other assets that form part of the reside — i.e. those assets are sold, or enough of them are sold, so that the proceeds of sale will cover the costs.
• If the costs have still not been covered, then out of any specific cash bequests.
• And, if the costs are still not covered, then out of specific bequests of assets.

The presumption is that if I, the testator making the will, leave you the house, or the farm, or this valuable painting, or the sum of €5, or my hideous statue of the Infant Samuel at Prayer, then I want to to get the house, farm, etc free and clear, without any obligations. If I intend something else, I need to say so in the will. Hence, specific bequests are "raided" to pay estate expenses only if there is no other option.

And cash is "raided" before other assets simply because it's easier and cheaper. If the executor has to sell assets to raise cash to pay expenses, the costs of the sale of assets are themselves part of the costs of administration, and there's a presumption that testators would prefer to minimise the costs.

coylemj

https://www.boards.ie/discussion/comment/123903777#Comment_123903777

The executor can choose to do personal probate. It will avoid the cost of a solicitor and, as the estate looks fairly uncomplicated (money in various accounts and one property going to a single person), it shouldn't be beyond the competence of a reasonably organised person.

Probate in this case does not have to involve transfering title of the house to the brother's name. He can leave the house in the mother's name, the grant of probate (showing the house was left to him) will be sufficient proof that he effectively owns the house if/when the time comes to sell it.

Peregrinus

No. All you're doing there is prolonging the administration of the estate. If the nothing is done to transfer the house to him then, when the time comes that he want to sell the house, he's going to have to get the executor either (a) to transfer the house to him so he can transfer it to the buyer or (b) to transfer the house directly to the buyer. It need not be a big drama (assuming the executor is still alive, still has their wits about them, and hasn't fallen out with the beneficiary) but it is important to understand that it will be necessary. You can't just sell a house that, although left to you in a will, was never transferred to you.

Claw Hammer

https://www.boards.ie/discussion/comment/123903602#Comment_123903602

Fairness has nothing to do with it. It is what the testatrix wanted is what matters. The only time fairness might come into a will is if there is a section 117 application.