Executor reserving their rights?

A

Angeleen

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My brother and I are the executors on our mothers will.

After she died we agreed that he would go to the solicitor and initiate the legal work. I gave him some of the necessary documents but it was he who had all the contact with the solicitor. I assumed that a time would come where we would both attend and sign where needed.

However, I recently received a letter from the solicitor now enclosing a Grant of Probate solely in my brother's name stating on it "Reserving the rights of the other Executor". This caused me great distress as at no stage was I ever asked if I wished to reserve my rights. (I most definitely did not want this.)

I rang the solicitor who was incredibly rude, said he didn't have to ask me as he had never met me, proceeded to "talk over me" and ultimately hung up:( (My brother has since given me a copy of the probate application form he completed and my name, details etc were on this, so I am at a loss to know what happened)

Could anyone please tell me if my rights can be reserved without ever asking me, and also if I can be added back in. Also did the solicitor act inappropriately? This is entirely an emotional issue for me as I looked after my mother for a long time, and in no way does it affect inheritance etc.

Btw I had, as administrator, already carried out one task in paying my mother's house insurance following her death, and question if this qualifies as intermeddling?
 
"Could anyone please tell me if my rights can be reserved without ever asking me"
Good question. I don't honestly know, You may need to get some legal advice on it. I would have assumed a signature was needed, but its only an assumption.
I had a look on courts.ie
There is a document called: RENUNCIATION OF PROBATE OR ADMINISTRATION WITH THE WILL ANNEXED
Mentions on the form: (Signed) [Person renouncing to sign here]
I am not sure if this is correct document but no harm to read up on it.

also found below from legal firm website..
An Executor has a choice to accept, reserve or renounce their executorship. You should note that once you accept your appointment as an Executor, once the Grant of Probate issues, you cannot then turn back and decide not to act without the consent of the High Court. By reserving your right to act, you will stand aside from the administration of the Estate and will not be actively involved in same but if the need arises you can come back into the administration at a later date and apply to the High Court for a Grant of Probate to issue in your own name. This will involve a fresh application to the Probate Office.By renouncing your right to act you will permanently stand aside from the administration of the Estate and will not be allowed to become involved in the Estate in any way, as Executor, at any point in the future.
 
Thank you very much for your reply. Renouncing (from my google research) seems to be very final whereas Reserving seems to allow the option to return, as you have quoted. I rang a solicitor today and he couldn't tell me whether Renouncing needs to be in writing or not. I think I will lodge a complaint to the Legal Services Regulatory Authority. However I would prefer to know in advance as I may be wasting my time otherwise.
 
Angeleen said:
Thank you very much for your reply. Renouncing (from my google research) seems to be very final whereas Reserving seems to allow the option to return, as you have quoted. I rang a solicitor today and he couldn't tell me whether Renouncing needs to be in writing or not. I think I will lodge a complaint to the Legal Services Regulatory Authority. However I would prefer to know in advance as I may be wasting my time otherwise.
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find out 1st if your signature was needed or not. Call another solicitor who knows. Maybe email the solicitor your brother used & asked them if your signature was used to have your rights reserved? maybe cc law society...
 
"Could anyone please tell me if my rights can be reserved without ever asking me, "

Yes.
The proving executor does not need to notify any other executor.

"and also if I can be added back in. "

Apparently, you can come back into the administration later and take out a subsequent Grant. Its called a Grant of Double Probate.

Also did the solicitor act inappropriately?

No. He acted on your brother's instructions.

"Btw I had, as administrator, already carried out one task in paying my mother's house insurance following her death, and question if this qualifies as intermeddling?"

Hardly.

"I think I will lodge a complaint to the Legal Services Regulatory Authority. "

No grounds

mf
 
Have you talked to your brother about this? The solicitor may well have been acting on his instructions.
 
tom_12345 said:
find out 1st if your signature was needed or not. Call another solicitor who knows. Maybe email the solicitor your brother used & asked them if your signature was used to have your rights reserved? maybe cc law society...
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Thank you for all your help.
 
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mf1 Thank you for this information. Do you know if I now were to apply for this Grant of Double Probate, is it a matter of filling out a form, and the courts use all the information previously submitted for the original Grant of Probate?
Or would it be like starting the whole probate procedure all over again by having to re-submit all the previous information given and start anew?
Most of my mother's assets are distributed at this stage (since receiving the original Grant of Probate), so for me to now apply for Grant of Double Probate it would mainly be for emotional reasons, as I was very upset when I discovered my rights had been reserved.
 
mf1 When I said I had paid my mother's house insurance I meant that I had paid it as an executor named on her will. The insurance company would only allow me to renew the policy on the basis that I was an executor. I had to submit a copy of my mother's will as proof of this, along with her death certificate. They would not discuss any aspect of the policy with me until I did this.
This would have been after the application for the Grant of Probate had been made.
 
This will sound harsh but you will achieve nothing by taking out another Grant. The estate is largely distributed.

Forget about the insurance. Its done.

If you were a client asking for my advice, I would advise you to let it go and find time to focus on grieving for the loss of your mother and moving on with your own life rather than pondering late at night on a perceived slight.

mf
 
I don't know would I call this a 'perceived' slight; they didn't just forget to post a birthday card.

It's a very clear action on the part of one Exec in a legal capacity; I'd agree however that the OP probably can't make any material difference at this stage.

It's news to me that Exec A can instruct Soltr to effectively discount any contribution to the process from Exec B with neither notification or agreement; what's the legal reasoning for this @mf1?
 
An obvious example is where one executor won't do anything- if all the named executors had to make the application and one, or more, wouldn't then it would take a Court application to remove the non performer. It could also be a nominated executor suffering from a mental or physical illness.

mf
 
Thirsty said:
You would have expected some form of due process though?
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From reading the foregoing, I suspect that any (understandable) issues that Angeleen has about what has occurred are between her brother and her rather than with the solicitor who (presumably) has merely carried out her brother's instructions.
 
Shirazman said:
solicitor who (presumably) has merely carried out her brother's instructions.
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What I'm questioning is how the Soltr did this on the direction of Exec A with no reference or communication to Exec B.

Whilst I can see there may be circumstances where it might be needed; I find it hard to believe that the Soltr in this case was fully in the right.
 
MF1 has the best advice, Angeleen. Your brother arrived at the solicitor with your blessing to start the process. The solicitor saw him as the “proving executor” as MF said coming in to carry out the grant of probate. He fills out all the info with both your names as your brother showed you. He knew you were not the proving executor and you hadn’t renounced so you naturally fell into the group of reserving executor. The solicitor obviously thought you were both being very sensible allowing one of you to do all the dealings with the solicitor. It probably creates confusion and delay when dealing with multiple executors. It just ticked a box for the solicitor, he would not have been acting in an underhand manner.

Did your brother not keep you updated on progress? Maybe it would have been less of a shock if you had heard about the steps that were taken. I think the shock has come from your thinking that you would be called on to sign paperwork. You may have been anticipating it would be emotional, another step to take in the process after your mother passed away. But even a simple query to your brother may have helped change this view.

It sounds like no one did anything deliberately wrong but you experienced stress and distress when you got the letter. I think redoing the paperwork to demonstrate you wanted to be a proving executor sounds complicated, very expensive and would delay the final settlement of the estate.

MF is right, there is really no need to go there. Perhaps there are other tasks left to do that you can take over from your brother. Maybe like putting up the grave stone, doing these tasks may help you feel you have been an executor as well.
 
Clamball said:
The solicitor obviously thought you were both being very sensible allowing one of you to do all the dealings with the solicitor.
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Again, I question that Solicitor failed in due dilligence in not writing to Exec B to confirm that what they were told by Exec A was correct.
 
The Solicitor will merely act on the instruction of the instructing executor. The Solicitor has absolutely no obligation to a third party in this instance.

The question of “due diligence” and/or “due process” does not arise for the reasons @mf1 sets out above. These concepts are simply not applicable (at this stage anyways) to the extraction of a Grant of Representation.

(BTW, there is nothing “obvious” about what the Solicitor may or may not have thought about one executor issuing the instruction, and in any event it’s entirely immaterial to the Solicitor - he/she is instructed by one party and advises and acts for that party. Simple).
 
The Solicitor has absolutely no obligation to a third party in this instance.
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This isn't a 'third party'; this is a duly appointed joint executor who has equal legal responsibility in regards to the execution of a will.

I don't see how you can say that the concept of due diligence is not applicable here.

At the very least a two line letter from Solicitor to Exec B, saying Exec A has instructed me to reserve Exec B and I will henceforth only deal with Exec A is an entirely reasonable expectation.
 
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