Probate regarding a commercial property
Discussion
Some of you may remember my previous post from a few years back regarding my wife's fathers estate and inheritance. I won't go into detail - there is a very detailed thread on here that goes into all the specifics but a quick summary of the current position is:
Wife decided not to proceed to court and has reluctantly lifted the caveat on the probate. The probate was granted in March this year. Her brother and his wife are both the "self-appointed" trustees and executors on the father's will (the specifics of the "self-appointed" bit are in the original thread).
In the will, she has been effectively been left a 50% of a commercial property which is in her father's name (from a very large portfolio - everyhting else went to the brother and effectively his wife. The other 50% of this commercial property is thankfully is held by another relative, who also has been duped by the brother and is siding with my wife.
My wife at this point just wants to get the title deed name changed into her name and sell off the 50% stake to this relative, who is willing to purchase it, at FMV.
A few things:
- Whilst the caveat was in place, this relative enquired via his solicitor whether he could rent the commercial property out ahead of the probate being finalised, mainly due to business rates payable even on empty premises. Whilst my wife initially suggested to it informally, with 50% of any rents received should be held in a trust or similar, until such time that the probate was granted. It however was never formally agreed between our solicitior and the relative. It was simply merely a suggestion, to which we never received a response.
- What my wife has subsequently found is that her brother has found a commercial tenant and has been recieving the money via a setup using a solictor of his own for the last year - since March 2024. She wasn't at any time informed that this was case; she only found out by taking a drive to the commercial property and finding a new business running there. Having called the relative who owns the other 50% says he is receiving 50% of the rent and her brother is receiving the other 50%, even though the property is not in his name.
I'm not sure how a property can be reneted out when it is not in her brother's name, no permission was given by the wife and the probate wasn't granted until March this year?
Some questions:
1. We are seriously considering going back to the lawyers to make some enquiries, although only want to do this as a last resort. Thoughts?
2. Presumably now the probate has been granted, IHT is due on the estate. Taxes due are deducted from the estate as I understand it but how does this work in practice?
3. My wife is keen on puting this matter to bed and move on with her life and therefore keen to sell the property off as soon as the estate has been distributed and title deed is in her name. However our feeling is that they (brother and his wife) could drag this out and not play ball. Is there a set timeframe by which they need to complete formalities? Also do they have the power to not grant my wife the 50% share of the property as executors and trustees? Do they have a legal obligation to do as per the will?
Wife decided not to proceed to court and has reluctantly lifted the caveat on the probate. The probate was granted in March this year. Her brother and his wife are both the "self-appointed" trustees and executors on the father's will (the specifics of the "self-appointed" bit are in the original thread).
In the will, she has been effectively been left a 50% of a commercial property which is in her father's name (from a very large portfolio - everyhting else went to the brother and effectively his wife. The other 50% of this commercial property is thankfully is held by another relative, who also has been duped by the brother and is siding with my wife.
My wife at this point just wants to get the title deed name changed into her name and sell off the 50% stake to this relative, who is willing to purchase it, at FMV.
A few things:
- Whilst the caveat was in place, this relative enquired via his solicitor whether he could rent the commercial property out ahead of the probate being finalised, mainly due to business rates payable even on empty premises. Whilst my wife initially suggested to it informally, with 50% of any rents received should be held in a trust or similar, until such time that the probate was granted. It however was never formally agreed between our solicitior and the relative. It was simply merely a suggestion, to which we never received a response.
- What my wife has subsequently found is that her brother has found a commercial tenant and has been recieving the money via a setup using a solictor of his own for the last year - since March 2024. She wasn't at any time informed that this was case; she only found out by taking a drive to the commercial property and finding a new business running there. Having called the relative who owns the other 50% says he is receiving 50% of the rent and her brother is receiving the other 50%, even though the property is not in his name.
I'm not sure how a property can be reneted out when it is not in her brother's name, no permission was given by the wife and the probate wasn't granted until March this year?
Some questions:
1. We are seriously considering going back to the lawyers to make some enquiries, although only want to do this as a last resort. Thoughts?
2. Presumably now the probate has been granted, IHT is due on the estate. Taxes due are deducted from the estate as I understand it but how does this work in practice?
3. My wife is keen on puting this matter to bed and move on with her life and therefore keen to sell the property off as soon as the estate has been distributed and title deed is in her name. However our feeling is that they (brother and his wife) could drag this out and not play ball. Is there a set timeframe by which they need to complete formalities? Also do they have the power to not grant my wife the 50% share of the property as executors and trustees? Do they have a legal obligation to do as per the will?
Sadly Ox I both remember the previous thread and contributed.
Sounds as if from your new post as if your wife's brother has continued with his same behaviour.
If your wife wants to draw a line then going back to Lawyers to achieve this sounds like the only thing that can be done although bear in mind all the way through he has been playing the long game -and seemingly succeeding.
Worrying about how the brother might behave shouldn't put you off though.
I cannot recall if you ever went back to a Solicitor over the LPA "abuse " but if you did then perhaps go back to them over the sale.
Personally I would be reclaiming my share ( in this case your wife's ) of any Rent he obtained " wrongly " but as with the LPA challenge there will be costs involved so you need to be wary of both cutting your own nose off v pragmatism of what the likely net of this would be.
Sounds as if from your new post as if your wife's brother has continued with his same behaviour.
If your wife wants to draw a line then going back to Lawyers to achieve this sounds like the only thing that can be done although bear in mind all the way through he has been playing the long game -and seemingly succeeding.
Worrying about how the brother might behave shouldn't put you off though.
I cannot recall if you ever went back to a Solicitor over the LPA "abuse " but if you did then perhaps go back to them over the sale.
Personally I would be reclaiming my share ( in this case your wife's ) of any Rent he obtained " wrongly " but as with the LPA challenge there will be costs involved so you need to be wary of both cutting your own nose off v pragmatism of what the likely net of this would be.
alscar said:
Sadly Ox I both remember the previous thread and contributed.
Sounds as if from your new post as if your wife's brother has continued with his same behaviour.
If your wife wants to draw a line then going back to Lawyers to achieve this sounds like the only thing that can be done although bear in mind all the way through he has been playing the long game -and seemingly succeeding.
Worrying about how the brother might behave shouldn't put you off though.
I cannot recall if you ever went back to a Solicitor over the LPA "abuse " but if you did then perhaps go back to them over the sale.
Personally I would be reclaiming my share ( in this case your wife's ) of any Rent he obtained " wrongly " but as with the LPA challenge there will be costs involved so you need to be wary of both cutting your own nose off v pragmatism of what the likely net of this would be.
Thanks Alscar, yes I remember. We did proceed with the solicitor and even got advice from a barrister - whilst my wife had a strong case, it was lacking evidence of the parts of estate they were hiding. Unfortunately without proof - things like overseas bank statements, shareholding statements etc we felt it was difficult to proceed as there wasn't what appeared a clear path. The process itself was good though as we uncovered a lot of lies, theft and of course coercion of the mother. We had a capcity expert say that the father on balance of probabilities was not of sound mind when the "new" will was created, 2 months prior to his passing. Via correspondence, the mother was lying or at least that was what was communicated back via the brother's solicitor. It could have been the brother himself just making stuff up on her behalf.Sounds as if from your new post as if your wife's brother has continued with his same behaviour.
If your wife wants to draw a line then going back to Lawyers to achieve this sounds like the only thing that can be done although bear in mind all the way through he has been playing the long game -and seemingly succeeding.
Worrying about how the brother might behave shouldn't put you off though.
I cannot recall if you ever went back to a Solicitor over the LPA "abuse " but if you did then perhaps go back to them over the sale.
Personally I would be reclaiming my share ( in this case your wife's ) of any Rent he obtained " wrongly " but as with the LPA challenge there will be costs involved so you need to be wary of both cutting your own nose off v pragmatism of what the likely net of this would be.
Anyway, I'm particularly looking for an answer to 3 above if you or anyone else has experience of this. Cheers.
3. My wife is keen on puting this matter to bed and move on with her life and therefore keen to sell the property off as soon as the estate has been distributed and title deed is in her name. However our feeling is that they (brother and his wife) could drag this out and not play ball. Is there a set timeframe by which they need to complete formalities? Also do they have the power to not grant my wife the 50% share of the property as executors and trustees? Do they have a legal obligation to do as per the will?
If Probate was obtained in March and all applicable IHT tax paid at that time ( or at least a provisional amount depending on the property sale price etc ) then technically there is no set or maximum time frame for them as Executors to distribute the proceeds.
I'm still struggling with the concept of them appointing themselves as Executors but if Probate has indeed been done then clearly the Probate Office has accepted them ?!
Usually post probate proceeds dispersal can take up to around a year - depending on what form the proceeds take and any complexities.
In my Aunts case , she passed away in November 2023 ,Probate was obtained in July 2024 and I have managed to pay around 90% of her estate to the beneficiaries by Feb and March this year and that was with the help of a Solicitor.
Her estate included music royalties from her deceased husband which added to the fun of sorting.
Executors cannot and do not have any power whatsoever to change a will so yes they do have that legal obligation.
Given their behaviour to date though it wouldn't be totally ridiculous to suggest they could try and do a deed of variation ( has to be done within 2 years of the dod ) from your wife to themselves ?!
Given i seem to recall they had a friendly solicitor at the time of the LPA debacle anything is possible !
If Probate was obtained in March and all applicable IHT tax paid at that time ( or at least a provisional amount depending on the property sale price etc ) then technically there is no set or maximum time frame for them as Executors to distribute the proceeds.
I'm still struggling with the concept of them appointing themselves as Executors but if Probate has indeed been done then clearly the Probate Office has accepted them ?!
Usually post probate proceeds dispersal can take up to around a year - depending on what form the proceeds take and any complexities.
In my Aunts case , she passed away in November 2023 ,Probate was obtained in July 2024 and I have managed to pay around 90% of her estate to the beneficiaries by Feb and March this year and that was with the help of a Solicitor.
Her estate included music royalties from her deceased husband which added to the fun of sorting.
Executors cannot and do not have any power whatsoever to change a will so yes they do have that legal obligation.
Given their behaviour to date though it wouldn't be totally ridiculous to suggest they could try and do a deed of variation ( has to be done within 2 years of the dod ) from your wife to themselves ?!
Given i seem to recall they had a friendly solicitor at the time of the LPA debacle anything is possible !
Thanks Alscar. Don't think Deed of Variation is possible least not it has now been over 2 years since DoD but also in any case, surely would also need my wife's permission, which she would never give?
Do you who's responsibility it is to update the land registry with the name change, now that probate has been granted? Unfortunately we do not know if they have paid the IHT (if tax was payable) on the estate - is the name change something my wife can apply with the grant of probate or is it something we have to wait for them (executors/trustees) to do on her behalf, as when they feel like it?
Do you who's responsibility it is to update the land registry with the name change, now that probate has been granted? Unfortunately we do not know if they have paid the IHT (if tax was payable) on the estate - is the name change something my wife can apply with the grant of probate or is it something we have to wait for them (executors/trustees) to do on her behalf, as when they feel like it?
oxcode said:
Thanks Alscar. Don't think Deed of Variation is possible least not it has now been over 2 years since DoD but also in any case, surely would also need my wife's permission, which she would never give?
Do you who's responsibility it is to update the land registry with the name change, now that probate has been granted? Unfortunately we do not know if they have paid the IHT (if tax was payable) on the estate - is the name change something my wife can apply with the grant of probate or is it something we have to wait for them (executors/trustees) to do on her behalf, as when they feel like it?
Ox,obviously your wife would never give permission but I was simply suggesting the brother might continue in his cunning plan.Do you who's responsibility it is to update the land registry with the name change, now that probate has been granted? Unfortunately we do not know if they have paid the IHT (if tax was payable) on the estate - is the name change something my wife can apply with the grant of probate or is it something we have to wait for them (executors/trustees) to do on her behalf, as when they feel like it?
Afaik it is the Executors role to update LR but if your wife has a copy of the will and probate she may be able to herself ?
The Executors should have paid the IHT at the same time as applying for the probate certificate.
Tbh with you given the rigmarole and circumstances to date if I were your wife I would be asking a Solicitor to take over whatever role she has in now obtaining what is rightfully hers.
Gassing Station | Finance | Top of Page | What's New | My Stuff