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What To Do If An Executor Acts In An Improper Way
Hi all you legals.
Is there any legal mechanism by which an executor appointed by the deceased can be removed as an executor, ideally prior to the will being administrated? The situation has not yet occurred but will likely shortly and I wondered if there was anyway of pre-empting trouble.
My grandmother's older brother died owning property and left it to his wife ( they are both childless). As far as we can understand the will when she dies is left as follows, at least this is what SHE wants to happen:-
The whole estate is to be equally divided in equal measure to what were the brother's siblings ( irrespective of the number of children they have). Of the 5 remaining, it lies like this:
Brother one. Dead, 1 child.
Brother 2. Dead, no children.
My grandmother. Alive.
Sister. Dead. 6 children.
Sister.Dead. 4 children.
The 2x daughters of one of my grandmother's sister are the two executors of the will and they are setting themselves up to be a problem even in advance of my great aunt dying. My great aunt is very frail and quite easily bullied. One of the sisters already gained power of attorney by trickery but my great aunt doesn't want to kick up a fuss as she hates upsetting people. Executor A has started making ' improvements' to my great aunts house with her money which were unnecessary and costly and when questioned why said ' Because I'm buying it after she dies'. When this point was argued she said that it was up to she and her sister to administer the estate and that the house was only worth about £80,000 (it's actual worth is probably in excess of £300,000). It's fairly plain at this point that they are going to be feathering their own nests upon my great aunt's death, so the simple question is, is there any way we can stop them getting a low valuation on the house and selling it to themselves at a knock down price? Our side of the family regard them as dishonest and unsuitable executors ( they have done something very similar before with an other family property) and would like to have some mechanism in place if possible where an independent solicitor administrates instead. Thanks for any thoughts and advice.
Is there any legal mechanism by which an executor appointed by the deceased can be removed as an executor, ideally prior to the will being administrated? The situation has not yet occurred but will likely shortly and I wondered if there was anyway of pre-empting trouble.
My grandmother's older brother died owning property and left it to his wife ( they are both childless). As far as we can understand the will when she dies is left as follows, at least this is what SHE wants to happen:-
The whole estate is to be equally divided in equal measure to what were the brother's siblings ( irrespective of the number of children they have). Of the 5 remaining, it lies like this:
Brother one. Dead, 1 child.
Brother 2. Dead, no children.
My grandmother. Alive.
Sister. Dead. 6 children.
Sister.Dead. 4 children.
The 2x daughters of one of my grandmother's sister are the two executors of the will and they are setting themselves up to be a problem even in advance of my great aunt dying. My great aunt is very frail and quite easily bullied. One of the sisters already gained power of attorney by trickery but my great aunt doesn't want to kick up a fuss as she hates upsetting people. Executor A has started making ' improvements' to my great aunts house with her money which were unnecessary and costly and when questioned why said ' Because I'm buying it after she dies'. When this point was argued she said that it was up to she and her sister to administer the estate and that the house was only worth about £80,000 (it's actual worth is probably in excess of £300,000). It's fairly plain at this point that they are going to be feathering their own nests upon my great aunt's death, so the simple question is, is there any way we can stop them getting a low valuation on the house and selling it to themselves at a knock down price? Our side of the family regard them as dishonest and unsuitable executors ( they have done something very similar before with an other family property) and would like to have some mechanism in place if possible where an independent solicitor administrates instead. Thanks for any thoughts and advice.
Answers
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I assume this is an english case. If so, the disgruntled beneficiaries can apply under s116 Senior Courts Act 1981 to the Probate Registry to have the named executors "passed over" and the Grant made to either a disinterested party or up to four of the other residuary beneficiaries.
However, this is not a discretion which will be exercised lightly. To be successful you must show that the relationship between the execs and bens has irretrievably broken down or that there is another good reason why they ought to be removed. It might be that they will behave themselves until they've got the Grant. However, if things do start to go awry after the Grant you can apply to the High Court under s50 Administration of Justice Act 1985 for their removal. The s116 procedure is relatively simple and cost effective, it being commenced in the Probate Registry by Summons. The s50 procedure is full blown HC action and therefore can prove expensive.
Removal is not the only option though. Under the "self dealing" rule they cannot be both the seller and the purchaser of the property since they are in a definite position of conflict. If they did "buy" the property, the sale is voidable at the instance of the beneficiaries.
However, this is not a discretion which will be exercised lightly. To be successful you must show that the relationship between the execs and bens has irretrievably broken down or that there is another good reason why they ought to be removed. It might be that they will behave themselves until they've got the Grant. However, if things do start to go awry after the Grant you can apply to the High Court under s50 Administration of Justice Act 1985 for their removal. The s116 procedure is relatively simple and cost effective, it being commenced in the Probate Registry by Summons. The s50 procedure is full blown HC action and therefore can prove expensive.
Removal is not the only option though. Under the "self dealing" rule they cannot be both the seller and the purchaser of the property since they are in a definite position of conflict. If they did "buy" the property, the sale is voidable at the instance of the beneficiaries.
Yes, it does. Anyone who is in the position of an executor has a fiduciary duty to the estate - it matters not what their relationship to the deceased was.
You might find that they will behave themselves. If not, you will need advice from an appropriately qualified lawyer - look for a STEP member or even better an ACTAPS member (Association of Contentious Trusts and Probate Specialists).
You might find that they will behave themselves. If not, you will need advice from an appropriately qualified lawyer - look for a STEP member or even better an ACTAPS member (Association of Contentious Trusts and Probate Specialists).
I would have thought there would be some kind of tax implications as well?Not my specialist area though, Barmaid is the expert here.
As an aside, could they be trying to avoid or minimise any inheritance tax payable? Not just by trying to undervalue the house (I'd have though HMRC would take a rather dim view of this which could be viewed as tax fraud if undervalued for the purpose of avoiding paying tax on the estate value). Maybe if there is some pre-death (though it would have to be far enough pre-death and fit with the rules to be effective) disposal.
I'd also wonder about use (or possible abuse) of the power of attorney.
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As an aside, could they be trying to avoid or minimise any inheritance tax payable? Not just by trying to undervalue the house (I'd have though HMRC would take a rather dim view of this which could be viewed as tax fraud if undervalued for the purpose of avoiding paying tax on the estate value). Maybe if there is some pre-death (though it would have to be far enough pre-death and fit with the rules to be effective) disposal.
I'd also wonder about use (or possible abuse) of the power of attorney.
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Thank you Eve, that's another thought as well. My poor old great aunt was whisked off to the solicitors to 'sign some papers' one day, a few weeks later a letter came addressed to her niece from her bank and when she called them up she was informed she'd granted her power of attorney. She argued the point with the niece but they seem to try to make her fear and feel she's going mad. My grandmother offered to take her to see an independent solicitor to establish what's gone on because she rang up so upset, but by the time the appointment came they'd managed to talk her out of going and she said she ' didn't want to cause a fuss and offend them'. It's obvious they are completely up to no good, as they did an almost identical thing with another elderly relative a few years ago- they hang around the ailing ones like vultures and half the time no-one knows they've died for a week by which time they've done heavens knows what.
Would it be possible for you to get an 'quiet' valuation done now and then just drop into the conversation that '''oh as the house is worth approx XXXX the benificaries would get about xxx each.??
Also if you are able, find out as much as you can about probate and either at the time or before she goes, drop in little nuggets of info about it so that they know you know. Alternatively once you have a bit of probate information offer to help them as you know a bit about it. Either way it might make them realise you weren't born yesterday and they should be more honest about it.
Also if you are able, find out as much as you can about probate and either at the time or before she goes, drop in little nuggets of info about it so that they know you know. Alternatively once you have a bit of probate information offer to help them as you know a bit about it. Either way it might make them realise you weren't born yesterday and they should be more honest about it.
Hi Sharingan,
I am not able to answer this but I do understand what you are experiencing and I hope it all works out to be fair to your elderly relative and her true wishes.
Something happened in my family and there were problems for a year after the persons death. The two executors claimed that one of the banks the person saved with went under and all her savings at the bank had disappeared as a result and nobody could even find out about sums as records had gone. I happened to get a copy of the wrong will (2 years previous to the right one!) and while it was a mistake that I was sent it it was very upsetting to see how things had changed to their advantage. With this certain members of the immediate family weren't made aware of the death. Naturally you never expect things like this to happen but they do. Best of luck with it.
I am not able to answer this but I do understand what you are experiencing and I hope it all works out to be fair to your elderly relative and her true wishes.
Something happened in my family and there were problems for a year after the persons death. The two executors claimed that one of the banks the person saved with went under and all her savings at the bank had disappeared as a result and nobody could even find out about sums as records had gone. I happened to get a copy of the wrong will (2 years previous to the right one!) and while it was a mistake that I was sent it it was very upsetting to see how things had changed to their advantage. With this certain members of the immediate family weren't made aware of the death. Naturally you never expect things like this to happen but they do. Best of luck with it.
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