For the attention of Themas

[Valrie]

Hi Themas - thanks for your response. Have spoken with my ex husband's girlfriend and she has his will. He has made her the executor of his will and she is going to let me have a copy of it as my son is named in it. He has apparently left his half of the house to his girlfriend and my son with any monies from the house to go into trust until he is 18. As I said to her there may not be a lot of money, if any, left after people have been paid. She said she has contacted the Abbey National and has to take a copy of the death certificate in. We are now going to empty the house and get it on the market and sold as quickly as possible. Is it up to her to sort things out with the house as his executor or should I be doing it?

[themas]

It is her responsibility to deal with his estate as executor, but you own half the house so you should definitely be involved with her in all the arrangements for its sale. You and she will have to agree on instructing of agents, price and everything else to do with it.

I don't think the sale will be able to go through until she has obtained probate of his estate, because at the moment no-one could sign the sale contract on his behalf. Unless she is fully aware of how to do this and all the implications she will have to engage a solicitor to advise her.

You do need to make sure that none of the money from your half of the house gets used to pay your ex's debts, so you will need to sort out the issues about the various mortgages/charges to ascertain what you are actually liable for.

If the Court hearing about the charging order has not taken place, the executor should apply to Court for it to be cancelled or adjourned - a copy of the death certificate will probably be needed. The Court cannot make a charging order against your ex now that he is dead. If this has already been done and was done after he died, the Court should be asked to set the order aside.

The executor should contact the creditors (Welcome & whoever else was involved) who applied for the charging order and explain the position to them.

[Valrie]

Themas once again thank you very much for your prompt response and advice. Much appreciated. I will let her know about applying for probate of the estate.

[themas]

A further thought. Some creditors or their debt collectors are known to put pressure on executors/relatives/next of kin of the deceased to accept personal responsibility for paying the deceased's debts out of their own money. Sometimes they are not above implying that this is a legal requirement. It is not, and must be resisted entirely. If the debt is in the sole name of the deceased then - if it cannot be paid from the deceased's estate (i.e. assets he/she leaves) - it has to be written off by the creditor. No-one else is liable to pay it. If a debt is a joint one the surviving debtor is, of course, liable to pay it.

I suggest you and the executor bear this in mind so you can respond appropriately if any such approach is made to you.

[Valrie]

Thanks Themas - will be speaking to his executor today and will pass on this information.

[Valrie]

For Themas.Hi Themas. The executor has been to see a solicitor and has been told that the best thing to do is to hand the keys back to the Abbey National as it would cost approximately �750 - �1000 for probate and then it would cost to arrange for the sale of the property - money which neither of us have. I have spoken with the Abbey National and they have said obviously I will now be liable for the mortgage etc. as I am named. I have explained I do not have the cash to pay the mortgage as well as my own rent etc. and told them we were advised to hand the keys back. She said this is called a "voluntary repossession" and would need to do this as quickly as possible before legal proceedings are started for the arrears as court costs would then be added. Do you know what implications doing this would have on me in the future with regards to being able to get a mortgage? I am assuming if the house is sold and there are still joint debts I will be liable for these as well? God what a mess.

[themas]

Two part post

1. Are you certain that the total amount secured on the house as joint debts (the mortgage and any other charges you know to be joint) equals or exceeds the value of the house? If it does, then:

a) Voluntary repossession may be the best course of action if neither you nor the executor can afford to get probate and sell the house yourself. However, it is generally the case that repossessed houses sell for less than others and the mortgage lenders often seem to find a hell of a lot of fees etc. to add to the costs; and

b) Any shortfall in the joint secured debts (i.e. money owed to the lender(s) after the sale because the sale did not raise sufficient funds to cover all the costs) would be your reponsibility.

2. If there is still equity in the house after the joint debts have been cleared (i.e. the sale proceeds would exceed the full amount of the joint secured debts) then you are entitled to half that equity. If you go for voluntary repossession in this situation you need to accept that your share of the equity will possibly be reduced - because of the extra costs in 1 a) above - as compared with selling yourself (assuming you could get probate and sell quickly before too much mortgage arrears built up). Also, you have to be very careful that your share of the equity does not get used up to pay off any secured charges which were entered into by your ex in his sole name.

3. In the situation in 2 above, it is a judgement only you & the executor can make as to whether to allow repossession. I assume there is not much (if any) equity. If so your share of what there is could easily be used by mortgage arrears, court costs, probate & selling costs so the repossession route may well be the best. Obviously, this would not be the case if there was a lot of equity.

[themas]

2nd part:

4. Whichever route you follow, you will be responsible for any outstanding amounts on joint debts.

5. I believe that repossessions are noted on a register which is used by mortgage lenders when deciding whether to grant mortgages. They also check credit reference agency records. This might have an adverse effect on your ability to get a mortgage (but your present partner's finances would be taken into account) - your chances would probably be better using a mortgage broker rather than high street lender. However, even if you don't go down the repossession route the same could arise if you are unable to clear any shortfall.