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  1. #1
    SmurfEater's Avatar

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    Default Executor Legal Fees

    My solicitor has told me that legal fees for removing caveat on probate can come out of Estate, if property has been left absolutely to someone then do the fees just come out of residue, if Will states testamentary expenses are to be paid prior to distribution?
    Many Thanks!

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    des8's Avatar

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    Default Re: Executor Legal Fees

    If there is no need for specific legacies to be used to pay estate debts or testamentary expenses then they are distributed in full.

    This presumably refers back to your previous posts concerning your sister's actions. @Peridot may advise more fully

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    SmurfEater's Avatar

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    Default Re: Executor Legal Fees

    Thanks Des8 yes it does refer to my previous post but I thought it may have been easier starting new thread to make it easier for someone searching specifically for this type of issue!
    Its more the legal costs I am concerned about as I'm unsure if these will come out of total assets or just residue, as it will reduce residue inheritance for beneficiary! :/

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    des8's Avatar

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    Default Re: Executor Legal Fees

    The legal costs are deducted firstly from liquidated assets (ie cash, savings or goods sold as they have not been specifically bequested).
    If there are insufficient liquid assets, then specific bequests (eg house left to an individual) will be affected

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    Default Re: Executor Legal Fees

    Thank you... very helpful information, just wanted to make sure as I am still trying to protect residue as it is not left to me!

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    Default Re: Executor Legal Fees

    I've been told by sisters solicitor that even though I am Executor, until Grant of Probate, essential repairs to property need approval of all beneficiaries before I get them done, plus any monies paid by myself to protect further damage to property can not be charged to estate... is this true?
    They are also asking for information of Enduring Power of Attorney accounts, is this relevant to removing Caveat?
    Many Thanks!

  7. #7
    des8's Avatar

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    Default Re: Executor Legal Fees

    It is the responsibility of an executor to take all proper steps to protect the assets of the deceased and to manage any business of the deceased.
    These responsibilities are present before the grant of probate is made, and any costs are chargeable to the estate before distribution to the beneficiaries.
    It would not be necessary to obtain agreement from beneficiaries, but it might be good practice to keep tem informed.

    Any works undertaken would need to be necessary, not just cosmetic.
    If the beneficiaries felt the executor had exceeded his powers they would be entitled to challenge the expenditure .

    Accounts prior to the deceased's passing would not be relevant to the caveat.
    If they wish to question the attorney's actions the route is to contact the Office of Public Guardian

    Tagging @Peridot for confirmation?

  8. #8
    SmurfEater's Avatar

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    Default Re: Executor Legal Fees

    Thank you once again Des8
    I have obtained permission from beneficiaries for essential repairs so this is now sorted.
    My issue now is that my sisters solicitor has stated that I am 'merely a beneficiary' at the moment as there is a caveat, so I am unsure as to whether legal fees for removing caveat would be met by the estate as my role as Executor.

  9. #9
    des8's Avatar

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    Default Re: Executor Legal Fees

    Fees would come out of the estate.
    Contentious litigation is something to avoid by all parties, because it generally turns out to be horrendously expensive and often only results in a diminishing of the estate.

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    SmurfEater's Avatar

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    Default Re: Executor Legal Fees

    I know... Its my aim to avoid litigation but as I've not been given any proof behind reason for caveat then I've been given no choice but to raise a warning... So sad sister couldn't have sorted this between us!

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    des8's Avatar

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    Default Re: Executor Legal Fees

    But even if she puts in an appearance matters can be sorted without resorting to litigation.
    It could be that she will take it to the wire, hoping you blink first.
    If she has no valid grounds for disputing the will she could face paying the costs of any action herself, and hopefully her solicitor will have pointed this out to her

  12. #12
    Peridot's Avatar

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    Default Re: Executor Legal Fees

    Hi Smurfeater,
    Correct me if I'm wrong but didn't you issued a warning and your sister made an appearance so the caveat is now lodged for an indefinite period until the matter is resolved either by you issuing a summons which would be heard by the District Probate Registrar or by your sister removing the caveat or commencing a probate action in the estate.
    I assume that you have heard no further having offered mediation? Has your solicitor suggested you take any further action at this stage?
    From my recollection your sister was querying the validity of the Will? I can't see how the bank statements pre-death assist with this? If there is some question over how the assets were dealt with by the attorney then the OPG should be contacted. They could well request the info if they believe there is something to investigate.
    It seems to me that they are just on a fishing expedition to try and find something that they can get to stick so to speak. It is difficult to know what to do for the best, if you refuse then they may draw an inference themselves that something is being covered up but equally if you just roll over and hand over the information they are not technically entitled to it is giving in to the bully effectively.
    I would ask your solicitor what they think. They have been involved on and off and have a better understanding of what your sister's solicitor has requested. If there is nothing to hide then it may move things on to just disclose, as waiting for the OPG to deal with matters may delay things even further.

    As far as costs are concerned if a claim is made against the estate then the Court will ultimately decide who is responsible for them. The costs would come from the residue as Des8 says unless there is not sufficient in the residue then general legacies will become affected. Of course if a claim was brought and it was unsuccessful then your sister could potentially be liable for not only her costs but those of the estate in addition. These can of course be deducted from any legacy or residue that is owed to her if needs be.

    I strongly recommend that you speak to your solicitor, if you have received further correspondence from your sister's lawyer.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

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    SmurfEater's Avatar

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    Default Re: Executor Legal Fees

    Thank you so much for your time!
    I've been putting raising a warning off to give her time to give me reason and proof, but her solicitor has not given any information other than she has concerns that Mum didn't have capacity and all she wants is a fairer settlement, so today my solicitor raised a warning!
    I'm just so disappointed it has come to this, even though we rarely saw each other, she's still my sister and she's lost her Mum too.

  14. #14
    Peridot's Avatar

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    Default Re: Executor Legal Fees

    Raising a warning doesn't mean that this will go all the way to trial with the associated costs of that. It will be necessary to continue communicating to try and ultimately reach an agreement.
    It is a shame but you can't say you haven't tried to sort matters out before it came to this.
    I suspect there may be a way to go yet but hang in there, you will get there in the end. It's just so sad and I'm sure not what your mother would have wanted, but families are never easy!
    Keep us posted.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

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    SmurfEater's Avatar

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    Default Re: Executor Legal Fees

    Thank you for you kind words... I just wanted this to go as amicably as possible so gave her a little time... but I can't be bullied, as I, and others, know what Mums wishes were and it is my aim to carry them out!

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    Default Re: Executor Legal Fees

    Well... I tried to open communication gates once again by emailing my sister to let her know Warning has been issued, and how sad it was that it has come to this, only to receive a reply saying she will be making an appearance, and stating that she feels she does not trust me due to apparently misleading her in a telephone conversation years ago, which did not happen, and feels I am spending estate money to improve my assets, even though works have been agreed by her, I replied stating that the Will is valid and works are essential plus denied accusations she made, plus I even offered to not distribute estate until my sisters issues were sorted if she lifted caveat, but now no reply. I am afraid this looks like I am in for the long haul, as every time I reply to her emails and ask what she actually wants out of this, she does not reply. We live a long way from each other, how can we mediate if this continues to happen?

  17. #17
    Peridot's Avatar

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    Default Re: Executor Legal Fees

    How sad,
    From a practical point of view, do you have confirmation from your sister for the works to be completed? Forgive me I can't recall if your mother's property was to be sold or whether it comes to you? If you are to receive the property maybe the costs of any works that you carried out could be a negotiation point going forward? Just trying to think outside the box for future negotiations between you.
    As far as mediation is concerned, your sister would have to come to the Court if things went that far and both parties would need to be seen to be trying to settle throughout the process.
    As I say there is still a way to go but keep the lines open whether that be through solicitors letters or email. But if between the two of you do try and keep the emotion out of it. Hard I know but really important to keep to the facts.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

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    SmurfEater's Avatar

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    Default Re: Executor Legal Fees

    Thank you once again for your prompt reply, my Solicitor seems keen to go straight to litigation but I'm more prone to wanting mediation.
    Yes I have confirmation from her solicitor for one essential repair as it was effecting other houses in the area, house is in very poor condition to be honest, there are more essential repairs necessary but I don't feel now is the time to ask for permission to complete it. I have already explained that if this had gone to probate it would have been my bills to pay, and wouldn't have been coming out of the estate, so obviously, if it is sorted as Mum wishes I would pay back these costs.
    My Mothers house is left to me in her Will, and my sister and her daughter have been left residue, amounting to approx a 5th of estate, I don't think she understands how difficult it was to balance finances to pay Mums care fees, as she never had anything to do with us, we are lucky to have any monies left as at one time Social Services wanted me to sign house over to trust, but I struggled on by renting out her property, my sister was aware of these problems and never offered any support either financially or emotionally.
    Though my sister has never been there for either my Mum or Dad, I am still aware that she too has lost them both, if it was me, I would feel at least a little guilt for my lack of interest, but not sure my sister is that way inclined.
    I am still willing to mediate, though I am not comfortable with not having statements in writing as she seems to be making accusations which just aren't true. Just don't really know where to go from here without it costing a fortune.

  19. #19
    Peridot's Avatar

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    Default Re: Executor Legal Fees

    It is a shame, but at the end of the day provided the Will is valid then she is cutting off her own nose incurring costs that may well be deducted from the estate and therefore the available residue or from her own money, which unless she has the money hanging around, may have to be deducted from the sum coming to her eventually.
    I think it has got to the stage you have little choice but to go with your solicitor's advice to enable the estate to be finalised. You have tried and as long as you remain open to negotiation and mediation even once proceedings have been issued you cannot be criticised.
    Issuing proceedings does not mean you have to go all the way to a final hearing but it will definitely focus all parties minds on trying to reach a settlement. Her solicitor should also be advising her on the potential costs and possible orders that could be made, in relation to costs as well as potential outcomes. Hopefully negotiations will be suggested by her solicitor then.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

  20. #20
    SmurfEater's Avatar

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    Default Re: Executor Legal Fees

    As you may recall I have contacted my sister regarding mediation on numerous occasions, I feel they are now trying to use this against me as I have been written a letter by her solicitor quoting parts from my emails which state about mediation and a statement saying that this letter would be used in litigation regarding costs... What angle do you think they may be aiming at now please?
    Is it viable to mediate over email or is it necessary to be face to face?
    Many thanks!

  21. #21
    Peridot's Avatar

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    Default Re: Executor Legal Fees

    Why would offers to mediate be highlighted? Have you spoken to your solicitor?
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

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    SmurfEater's Avatar

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    Default Re: Executor Legal Fees

    Thank you once again!
    Solicitor is on holiday.... Warning has now come through and to be served.
    I've no idea about mediation implications. They have highlighted that I suggested mediation and where I said that sister failed to continue informal mediation via emails also saying that prior to mediation they require financial disclosure (which they have) and deceased medical records, surely they should have already applied for these?
    They also stated that the letter would be shown in court in relation to the question of costs, if mediation is my suggestion then are they implying it will be my at my personal expense? I really don't know what they are aiming to achieve? Is it possible to mediate personally via emails or does it need to be official?
    At this moment... Am I actually executor? As essential works were already organised to be completed on house on the day Mum died, and it was a shock for us that Mum passed away so quickly (only half hour in total) I allowed work to continue, should this payment come out of estate?
    Last edited by SmurfEater; 15th September 2017 at 09:26:AM.

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    Default Re: Executor Legal Fees

    My solicitor is keen to get this over with in court, as they are confident Will is legal. My solicitor never gets back to me to discuss anything with me, its been over a week now and no reply to questions I have sent her via email, and no return phone calls, probably as we are waiting for appearance to be made, and I don't want to be seen as a 'nuisance' client.
    Although I know my Mothers Will is valid, I wish to offer her daughter money as my sister constantly says she is doing this for her. I don't want this to go to court, mainly out of the fact I think my Niece deserves more as if was not her fault her Mother didn't bring her to visit. Unfortunately I don't have any money, so the only way to raise funds would be to re mortgage the family home if it was mine as Mum wishes, but would I need someone to help with the arbitration between us?
    Many Thanks X
    Last edited by SmurfEater; 20th September 2017 at 06:32:AM.

  24. #24
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    Default Re: Executor Legal Fees

    "As essential works were already organised to be completed on house on the day Mum died,....... I allowed work to continue, should this payment come out of estate?"

    IMO it was correct to allow work to complete (presumably already started) and be paid from the estate. Presumably there was a contract (if only verbal) and to have cancelled the works could have ended with cancellation charges.

    It seems the house makes up the bulk of your mother's estate, so I suppose your sister's solicitor is concerned that if you retain the house (as per the will) there will be very little left to be given to her.
    Have you suggested to them that if you can agree a figure you will give an undertaking to raise that sum (even by mortgaging the house) after settlement of the will.
    I'm concerned that even with all your goodwill, her solicitor only sees the legal problems and possibly loss of fees from contentious litigation if you should come to an agreement out of court.

    From what you tell us, and from your solicitors advice, it seems their case is very flimsy.
    If she loses her solicitor still gets paid and not necessarily from the estate.
    Perhaps your solicitor hopes by forcing the matter to court it will cause them to withdraw.
    That will relieve you of stress, and perhaps drive some sense into your sister.

    tagging @Peridot

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    Default Re: Executor Legal Fees

    Thank you once again for your support!
    I have told my sister I am willing to negotiate but my only way to raise funds would be to remortgage Mums house on the strength of rental coming in to it, answer was no reply to email.
    It frustrating as she will not give an accepted figure to negotiate from, she has had hardly any contact with my Mum, Dad or myself, since she went to Uni (most of which which Mum and Dad funded) over 40 years ago, and I know Mum and Dad felt hurt by this, so theoretical I know I have a strong case, but she is my only family, and I would like to be as fair as possible, but on the other hand, I know Mum didn't want her to have anything at all until I talked her in to leaving her something in her Will, even this was in front of witnesses who have made statements.

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