Final Charging Order

[Valrie]

My ex husband died on 1st July 2007. We own a house together with a common tenancy - changed by him from a joint tenancy in January 3007.

In May I was sent a copy of an interim charging order for �9,500 from a company he had got a car with. The hearing was to be held middle of July. I informed the company and the court of his death as did his executor.

They adjourned the hearing until end July. They then adjourned it again and it finally went ahead on 17th August 2007.

I have now received a copy of the Final Charging Order with costs added to the �9,500.

Can I appeal against this as it does not seem right? Or does the executor of his will need to appeal?

I assume they will not be able to take this debt from my half of the property as we were common tenants?

Just seems very unreasonable that they have been able to do this after his death.

There will be little if any money left from the sale of the property - will this company be able to chase me for the money when they do not receive it?

Long one I know but help and advice greatly appreciated.

[innocenti]

Who did your husband leave his half of the house to?

[Valrie]

Hi innocenti

In his will he states he wants his assets selling and half of the money given to my son and half given to the girlfriend. He has made our son the sole beneficiary of a pension and some other policies that he had which had lapsed.

[innocenti]

I am in no way an expert on this but by my understanding your son and the girlfriend would be liable for the charging order. As they have been left with his assetts they will have to pay his debts.

Once the house is sold they will have to pay the charging order.

I would seek legal advice on this straight away.

[themas]

I am not sure from our previous posts, but I think this charging order is for a debt in your ex's sole name. If that is the case, then the charge is only against his share of the house and none of it can be taken from your share. If any attempt is made to do so you must resist with the help of a solicitor. You are not liable for your ex's debts unless they are debts which are joint ones with you.

Once the house is sold, if there is not sufficient money in your ex's share to pay off the charge it becomes an unsecured debt of his estate. His executor (not you) has a duty to realise his assets and use the proceeds to pay off his debts so if there are any other assets they should go towards paying the rest of the charge (& any other debts). If there is not enough money in the estate to pay all the debts then the remainder has to be written off by the creditors - neither you nor the executor has to pay any of them from your own money.

I don't know the law about applying charging orders to a deceased person's estate but assume that - as the Court knew your ex had died - it must be allowed. In any case, it would be for the executor to try to appeal & not you.

Sometimes creditors who have a charging order object to the house being sold if they realise it will not raise sufficient money to pay off their charge. If that happens the solicitor dealing with the conveyancing will have to sort it out. My understanding is that the creditor cannot prevent a sale if the sale is at the proper market price & that, if they will not agree, a Court order can be obtained to override them.

[Valrie]

Nice to hear from you again Themas. Thanks for the advice. Does this mean I need to inform these creditors that the house is to be sold?

Don't suppose you know whether I am allowed to apply for probate on behalf of my son who is a beneficiary of his Dad's will? The girlfriend/executor is refusing to apply for probate and is threatening to stop the sale of the house.

[themas]

No, you don't need to notify the creditor. When the house is to be sold the solicitor dealing with the conveyancing (& he/she should be appointed by you as a part owner, jointly with the executor) will have to sort it out. You should make sure he/she is told at the outset about this charge, & he/she will then have to notify the creditor.

As I've said before, the house can't be sold without probate first being obtained (unless it is repossessed). At this stage, I don't think you can apply for probate. I'm not sure of the timescale but I think it has to be about a year after the death before anyone other than the executor can try to do this. Even then, a solicitor has to be involved and an application made to Court.

Is the mortgage being paid? (I know you've said before you can't afford it). If it isn't, then I would expect repossession action to start pretty soon.

[Valrie]

Thanks Themas. I have been advised to ask my local DPR about to "call the executor to account'" - have you any idea what this involve?

[themas]

I assume DPR is the District Probate Registrar. I am not familiar with the term "call the executor to account".

I have looked into the position a bit more. It is possible to take what are called "Citation" proceedings to force the executor to act, or to renounce their right as executor in favour of someone else - provided they have not started to act at all. If the executor has started to act but has not applied for probate, the procedure can make them get on with it (with the penalty of a fine). I think you have to wait 6 months from the date of death to implement this procedure, but am not certain about this.

By all means talk to the DPR - they may be able to advise you on how to go about this, but I suspect you may well need a solicitor to do it for you.

[Valrie]

Thanks Themas - will get the ball rolling by putting the house on the market and she may come to her senses, although I doubt it very much. She was happy to see the house repossessed and for me to be left with masses of debt but now there is a slight chance of me actually seeing some sort of profit from the sale of the house she is seeing red. Which is a shame because any profit I make will benefit my son, who after all has suffered a greater loss than anyone - he has lost his Dad. Kind Regards.