Insolvent estate difficult executer

[Blinkin73]

Hi

 

Please could any of you provide some advise please. Sorry for the long post

 

My mother died unexpectedly on 24th April. My brother and I are her only surviving next of kin being her son and daughter.

 

We found a will dated 2003 naming a certain solicitors as executors and trustess of the state and my brother and I as her beneficiaries.

 

Looking into her estate it would appear that it is insolvent, there being approximately £3500 in her bank and a further £3500 in an over 50's plan. She had two credit cards debts for approximately £3500 and £4500 and a credit agreement with a furniture store for £1500. There is no house or anything other of value such as a car as she had a mobility car and was declared bankrupt in 2006. She only started a funeral payment plan 3 months ago which is obviously not going to pay out.

 

Ive done much reading the past few days and sought legal advice as well as spoken to a probate practitioner and a bereavement support advisory service. The general consensus appears to be that as next of kin and not personal representatives we can pay a reasonable amount for her funeral, including a wake and a headstone and wrie to her creditors as next of kin advising them of her death ( we've already phoned and told them) and advise them of the insolvent estate and ask if they will consider writing off the debt. I would also get a firm to value the contents of whats in her home but I am pretty sure its not worth anything of value. My understanding is that there is no duty to settle an insolvent estate and we should then leave it to the creditors to settle the estate if they want to reclaim what is left. I was also advised to put a notice in the London gazette re further creditors contacting me.

 

I contacted the said solicitors last Tuesday lunch to request that they stand down as executors given the situation. My brother and I being unable to confirm her funeral arrangements until we know that they will stand down and we can safely use the monies in her account to pay for her funeral. We do not have enough funds ourselves at present. I phoned the solicitors again at 4.30 that day and was initially told that my mother owed them money, when I was put through to their acounts depeartment I was first told that they could not give me any information as it was confidential, then later told she didnt owe anything and that someone would be in contact though they couldnt say when.Two days later I received a call from the firm advising that one of the partners would be in contact.

 

I should add at this point that this is a firm who I had dealings with recently and took to the Legal Ombudsman due to the poor service I felt I received. I won on certain points lost on others. The Legal Ombudsman pointed out that I may have further compliants in future as my case was still ongoing. Wanting to move on with my life I didnt complain until it turned out that they had misbilled me on several ocassions and then wanted more money, which I paid along with making an official complaint which I have yet to receive a reply and will no doubt have to go to the Legal Ombudsman again for. To say I have no faith in the sods is an understatement. Ive posted previously on this site about this matter if you want to bore your self with the details

 

This morning I phoned again and was told by the secretary that whilst they had located my mothers divorce file they had not yet found her other file. I was also shouted at by the secretary when I asked when someone would contact me as I just wanted to bury my mother. She apologised imediately but thats not the point.

 

I sent the following email to the partner I was advised was handling the case

 

Dear Partner A,

 

I am writing to you in respect of my mothers estate and on behalf of my brother and I as sole beneficiaries.

 

My mother passed away unexepectedly on 24th April 2014. My brother and I have located a will dated 2003 which identifies your firm as executor and trustees. Can you confirm that there is not a more recent will with your firm.

 

Having looked at my mothers financial situation it would appear that the estate is insolvent. There being approximately £3500 in her bank accounts and a further £3500 in an over 50's life insurance plan and approximately £7500 in credit card debts. Due to my mother being made bankrupt in 2006 there are no other assets such as a house etc.

 

My understanding, after seeking legal advice, is that there is no legal obligation to settle an insolveant estate. My brother and I would very much like you to agree to stand down as executers and trustees of her will so that we may then access her funds to arrange and pay for her funeral.

 

It has now been over a week since I first contacted your firm to request this and am disappointed that as yet no one has contacted us to discuss this or made a decision on the matter. Until you do agree to this my brother and I are unable to make any funeral arrangements for her.

 

After calling your office today I am advised that you have located her divorce file but not the file containing her will as yet. Please could you ensure that this is done today and that a decision is made so that we may arrange her burial. The current situation is becoming quite intolerable.

 

If you require any further details please do not hesitate to contact me on **********

 

 

I received this email this afternoon

 

Thank you for your e-mail of this morning.

 

I was sorry to hear of your mother’s death.

 

I have spoken to my partner, solicitor A with whom you have already been in touch and she is currently looking into whether there is a more recent Will that that referred to made in 2003.

 

You will appreciate that papers have to be recovered from store and this does take time.

 

You say it is “over a week since I first contacted your firm to request this and am disappointed that as yet no one has contacted us to discuss this or made a decision on the matter.” Presumably you mean the request for the partners to stand down as Executors as of course solicitor A was in touch with you last week by telephone.

 

I do not know who has been advising you but the personal representatives of an insolvent estate have a duty to act in the best interest of the creditors of the deceased rather than the beneficiaries under the Will.

 

Debts have to be paid before any legacies and personal representatives may be personally liable to pay money back into the Estate if this procedure is not followed.

 

Before myself and my partner partner B are prepared to renounce Probate we will require an indemnity from you and your brother that you will personally pay to us any liability that we incur as a result of us renouncing Probate.

 

Apart from the indemnity that I refer to we will also expect the costs of the Deed of Renunciation which we can prepare to be paid by your brother and yourself.

 

There is no reason why you should not arrange the funeral and it may be possible for funds to be accessed without a Grant of Probate, given the assets to which you refer.

 

The information you refer to in your final paragraph concerning the Divorce file is incorrect.

 

Apart from the indemnity that I refer to we will also expect the costs of the Deed of Renunciation which we can prepare to be paid by your brother and yourself.

 

Please let me know if you are prepared to agree to proceed on the above basis.

 

Yours sincerely.

 

 

I want to write to them advising them of the their incorrect presumption that my brother and I would be acting as personal representatives and that we would only be acting as next of kin.

 

That whilst I am aware that creditors come before beneficiaries when there is an insolvent estate I am aware of the order that debts should be paid is as follows

1.reasonable funeral expenses

2. administration costs (your firm)

3. creditors.

That my brother and I intend to pay for her funeral from the estate and should her creditors wish to administer her estate themselves that will be up to them. There is no duty for anyone to administer an insolvent estate. That the only people who appear to lose out from this situation is their firm, therefore I believe there is a conflict of interest, nothwithstanding the fact that I have grave doubts about the level of service they provide as evidence by my previous complaint to the ombudsman and a currrent complaint they have yet to respond to, and that I feel that they are dealing with the matter in a prejudiced manner given the complaints I have made.

 

I also want to ask them to confirm by the end of tomorrow whether or not there is a more recent will and what information they require from us to prove her financial position, and that if I do not hear from them I shall proceed on the basis that they have agreed to stand down.

 

Obviously I shall try not to use such long sentences and huge number of commas. I am so angry and upset with them. We just want to bury our mother and get on with grieving and not deal with such selfish, callous turds.

 

Is this the right thing to do?Is it stipulated anywhere that there is no duty to to administer an insolvent estate?

[steampowered]

Sorry to hear of the loss. I'm afraid insolvent estates do still have to be properly administered. It is not stipulated anywhere that there is no duty to administer an insolvent estate.

 

You also need to think about the practicalities of getting the funeral costs. You need to check with the bank whether it is possible to pay funeral expenses without letters of administration or the consent of the executors named in the will.

 

I do not think there is any conflict of interest. The decision about who to appoint as executors is a decision for the deceased. It is not your decision. I can understand why the solicitors are concerned about being sued by a creditor if the estate is not properly dealt with. The solicitors might feel more confident if you lined up a different law firm which agreed to accept the appointment.

 

I don't understand why you care about service levels if the estate is insolvent. Personally I'd be tempted to let them get on with it.

 

It is not realistic to ask them to confirm whether there is another will in a day. Law firms generate a lot of paperwork. Old papers are normally stored off-site in a warehouse and it takes a few days to get them back. The standard service level I get for retrieving old papers is 5 working days.

[Blinkin73]

Thank you for your reply steampowered.

 

Things have moved forward since I last posted. Yeserday we got our mothers death certificate and my mothers bank wrote a cheque upon us producing an invoice for her funeral expenses. We would have liked to discuss this with her executors but they dont seem to want to speak to us.

 

I wasnt expecting them to find out if there was a more recent will in a day. I contacted them a over a week prior to that to advise of her death so they should have had time by now to locate any more recent will. At the time of writing this I have still not heard back from them.

 

I think there is a conflict of interest. I believe that due to my prior complaints they have been unwilling to speak with us about the matter. If they want to continue administrating the insolvent estate they are welcome to. All my brother and I wanted was to arrange and pay for her burial. Sadly we have had to do this without talking to them about it, though we've tried. We did this as her next of kin, not personal representatives.

 

Initially upon advice from various sources, including a bereavement support group, a probate firm and a solicitor, we expected them to want to stand down as there is no money to be made from the estate and just asked if they woud be standing down. There is now £3500 from an over 50's plan in her estate and approximately £10000 of debt. We just wanted to be open about accessing her bank account to pay for her funeral. After we got no response for a week, we asked them to step down as we just wanted to make funeral arrangements and their lack of willingness to communicate with us was preventing us from doing so and the situation was becoming intolerable for us.

 

Their delay/reluctance in communicating with us is a service issue I believe.

[steampowered]

Completely understood what you are saying.

 

Now the funeral is paid for it doesn't sound like you have any need to engage further with them. Presumably it is up to them whether they go ahead to sort the estate or whether they stand down.

[Blinkin73]

Yes, steampowered, we dont need to engage with them any further unless they contact us, but as a curtesy I shall let the know today what we have done re the funds in my mothers bank and her funeral. We are still a little unclear what to do with her furniture etc as that is part of the estate, though I am sure its not worth anything. We shall await the solicitors to contact us about that if they want to.