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Will - problem with fellow executor, probate from abroad


chocolatecakenz
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I am writing to ask advice on issues on Probate of the estate of my uncle. My cousin is acting as sole executor and I have concerns over some aspects of the process. I would appreciate views on whether my cousin has performed his duty correctly and whether there are grounds for complaint and who these need to be made to.

My uncle died on 22 May 2009. He left a substantial sum with approximately 50% of the total estate being the value of his house. In his Will he bequeathed all his estate 50/50 to his only two sisters, one sister being my mother, with the stipulation that the other sister, my aunt, could reside in the house for as long as she wanted or needed to.

My uncle named three Executors in his Will: his sister (my aunt), my cousin and myself. As I am living in New Zealand it was agreed that I would sign a waiver form to state that “I did not wish to act as an Executor at present”. I sent this form to my cousin who was co-ordinating things. Later, as he envisaged some problems with my aunt (his mother) he suggested it would be better not to put the waiver form forward in order that any decisions made by the Executors could not be tied. I sent an email confirming that he should not submit the waiver form well before he attended the Grant of Probate interview.

After some delay a full death certificate was issued on 12 October 2009. My cousin then applied for Probate (as the sole Executor I have since been discovered) and this was granted on 1 February 2010.

Since then things have been a bit fraught. However, the distribution of uncle’s possessions seems to have now been agreed and all of the monies from various banks and financial institutions have been deposited in an account held by my cousin. My cousin informs me that they are now belatedly, eighteen months after my uncle’s death, applying to the tax authorities regarding uncles’s income tax return, and his Estate’s tax position.

I have three problems/questions:

1. My cousin has left the administrative side of communicating with banks, financial institutions etc. to his wife. He originally offered her services free but has since asked my mother for £5000 for this service (with an additional £5000) to be paid by his mother. After protest, and after threats that the Estate would be put “on hold” until payment was agreed, my mother agreed to £2500 from herself and her sister (total £5000) to be paid out of the Estate. I suspect that it is not legal to charge for these services from a non professional relative or friend of an executor.

2. In March 2010 my cousin moved to Australia (permanently) from where he is trying to settle the Estate. This is only part of the reason that the estate is taking so long to settle. I suspect that it may not be legal to act as a sole Executor while living overseas.

3. Until 3 months ago I believed I was still a named Executor on the probate form but it transpires that my cousin did indeed submit my waiver form. However, I see that the waiver form says “Although I do not wish to act at present, I reserve the right to apply for Grant of Probate in the future”. Can I do that while residing in New Zealand? Did my cousin commit perjury declaring himself as sole nominated executor?

 

Things have now got to the stage where my cousin is not communicating at all and, quite frankly, I am not 100% confident that my mother will be presented with a complete breakdown of the financial affairs of the Estate when it is eventually settled.

I would like to ensure that my mother and I have a complete breakdown and would like to become actively involved as an Executor in order to ensure this. I would therefore appreciate opinions on the three points above or any suggestions on how we should proceed from here.

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Hi, and welcome!

 

Unfortunately, your issue relates to probate matters, which is a complete minefield in the UK and in many cases (hence why people post on here) are very complex, and beyond the scope of a swift reply.

 

In response to your questions (and these are just 'hot' facts)

 

 

  • Executors cannot charge for their time, unless there is a charging clause in the will. This applies even if the Executor is a professional person.
  • Any executor (of a UK probate matter) can reside abroad, or within the UK.
  • Not sure that your cousin would have submitted perjury from the details above, but possibly have commited a form of false representation.

But your case sounds extremely complex, I would advise seeking some legal advice - not easy to do if you are in New Zealand, but I really do think that this may stretch beyond this forum's experience - my normal advice to anyone (on and offline) is to seek advice from a probate professional, as the complexities were not even studied in full during my time studying it!

Lived through bankruptcy to tell the tale! Worked in various industries and studied law at university. All advice is given in good faith only :)

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