Inheritance - Family home to be sold prior to death. Father confused as to role of ex

I visited my father in his nursing home today to be told that there was a family meeting (I wasn't invited) and the family home was to be sold. The house has been empty for about the past 8 months.
I visit my father every fortnight or so and there has never been any mention of selling the family home.
It appears that another family member has been suggesting this to my father. This other family member's husband is the executor to my father's will.
My father has now said that he wants his executor to deal with the sale of the house. I have tried to explain to him that the role of the executor only comes in to play after his death. Unfortunately he doesn't believe that this is the case.
There is an un-activated Power of Attorney in place that names his three children as his Power of Attorney.
Apparently the executor is already in the process of organising the sale of my father's house.
Should the person who is the executor to the will, advise my confused father as to the role of the executor. My father is talking about opening a bank account in the executors name to put the sale proceeds in.
As the executor's wife is the one putting pressure on my father to sell the house I believe that there is a conflict with the executor acting in this way.
Am I right?

Cue Family Fall out!

This is one of those incredibly sensitive areas. Just a few matters:

1. Is your father compos mentis?
2. Is this what he wants to do?
3. Is this a sensible proposal from an objective stand point?

If the answer to 1. is yes - then your father is free to do what he wishes and see 2.

If the answer to 1. is no - then your father does not have capacity to make this decision and , unless the Power of Attorney is an Enduring Power of Attorney, no-one else can deal with the sale until the EPA is registered.

If anyone is going to try and push this through, then I suggest you talk to someone with a veiw to having your father made a Ward of Court. This may not sit well with you/your father/other members of the family.

If the answer to 1 is -Umm, not exactly sure, then you are into the cess pit of what can happen when people get a smell of cash! Awful but true.

Or is it even remotely possible that they have your father's best interests at heart? And that (forgetting about 1 above for the moment) this is a sensible move?

My own experience (personal and professional) is that it all tends to get a bit murky at a certain stage. If you feel you have genuine conerns, talk to your own solicitor who can be objective.

And raise it with the rest of the family.

mf

Thanks mf1. My father is in his 90's. He is practically blind and deaf. At times he remembers peoples names and knows what he is doing but at other times he does not know what he is doing. He is often emotional, crying, sometimes aggressive and constantly complains about being weak and wishing to die.
He has enough money in his current account to pay for his stay in the nursing home for the next 10 years. So he does not need to sell the house.
My sister the wife of the executor will not consider activating the Power of Attorney because that would mean that she would have to relinquish sole control over my father's finances and care and share these jobs with her two siblings. She will not let anyone else help out. She has made my father dependent on her.
Can one family member force the activation of the Power of Attorney and thus delay the sale of the family home?
My real fear is that the proceeds of the sale of the house will disappear in to my sister and her husband's bank account and they will claim ownership of this when he dies.
There is a will leaving his estate to his three children.

Sorry for your situation. Enduring Power of Attorney can only be enforced by agreement with your Dad and someone (his doctor/consultant) who can testify that your Dad is of sound mind in agreeing to the Power of Attorney. Have just come through a somewhat similar situation, where in the end my mother would not agree to the P of A and we just ended up in a mess. Executor has no powers over your father's estate until he/she is granted Probate by the relevant authority. I would speak to solicitor who specialises in this area and get advice.

Unfortunately my father believes that the named executor can act for him legally in the capacity of being an executor before he dies. Nothing will change his mind on this. He seems to think that being an executor is akin to being a solicitor.
The named executor seems to be quite happy to go along with this. He has not told my father that he cannot be his executor until after he dies.
The Power of Attorney was set up nearly three years ago.

Get a psychiatric assessment of your father to see if he is competent to handle his own affairs. If he is not, the sale cannot proceed now. Instead the enduring power of attorney will have to be invoked and presumably you are one of the attorneys or at least your brother is not the only one. If there is no need to sell the house then you can put a stop to it. The power of attorney is invoked by getting him medically assessed to see if he is competent or not, then it involves serving a notice on your father and applying to court- and yes, one person can apply though all are notice parties and so could object- really though what matters is the medical evidence.

If your father is found to be competent to handle his own affairs you have to leave him to it.

WaterWater said:

He has enough money in his current account to pay for his stay in the nursing home for the next 10 years. So he does not need to sell the house.

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Should he live for another 10 years what would happen to the house, what would be the logic in not selling it and who would pay the costs of it's upkeep. How long is your dad in the nursing home and who takes care of the house. Did you dad live there alone, did someone look after him?

It may be sensible to sell the house, as if left unoccupied, it may fall into disrepair. However, the idea of paying the proceeds into a bank account in someone elses name is madness (assuming your father doesnt want to give away his money).

I've seen this situation before and my opinion is that the best option may be to pay the proceeds into a bank account in your fathers name, overseen by a solicitor, whereby money can only be withdrawn for your fathers needs and where there are multiple signatures (of siblings) needed to access the money.

mf1 said:

then you are into the cess pit of what can happen when people get a smell of cash! Awful but true.

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My father has told us that he will leave the house to his children. One family member likes to spend spend spend. Holidays, furniture replacement, house painting every other year, garden design, 5 star hotels etc etc. My father was admitted to a nursing home last year. I have recently heard that the poor man has been subjected to ongoing scare stories about not selling his home. Danger of burst pipes, break ins, Insurance problems, Household tax, charges, gardening upkeep etc. This is with a view to getting hold of his money so that she and her husband can keep up their lifestyle. She can't even wait until the poor man is dead. He is in his mid 90's.
There is nothing more disgusting to see the levels that some people will stoop to to get their grubby greedy little hands on someone else's cash.

Grizzly said:

There is nothing more disgusting to see the levels that some people will stoop to to get their grubby greedy little hands on someone else's cash.

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Sad but true and all too common.

Grizzly, at the risk of a family row but in the interest of your father can you stop your sister. I find the direct route best, but that would be me.

In the OP's father's situation, how would a sale be executed? Would any solicitor accept instructions to sell without satisfying him/herself that instructions are bona fide? If the sale does go ahead, surely the solicitor could not legally pay any proceeds into the account of the brother-in-law or sister as they have no legal standing until after the man passes away. Even then, surely the solicitor handling the estate will not pay the proceeds into one person's account but split the estate according to the will.

Slim said:

In the OP's father's situation, how would a sale be executed? Would any solicitor accept instructions to sell without satisfying him/herself that instructions are bona fide? If the sale does go ahead, surely the solicitor could not legally pay any proceeds into the account of the brother-in-law or sister as they have no legal standing until after the man passes away. Even then, surely the solicitor handling the estate will not pay the proceeds into one person's account but split the estate according to the will.

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I agree.
If the sale goes ahead with the executor organising the sale on behalf of the owner, then the owner ( the OPs father) will still have to sign all the paperwork and the sales proceeds will be given to the owner.

If it gets this far, and if the OPs father then decides to lodge the money in an account in the executors name, then the family should step in and insist that the proceeds be used as your father intended,

If this situation arose in my family and does get as far as this, I would be going to a solicotor and getting legal advice on how to ensure that the proceeds are not put into the executors bank account .

However, it may never get to that, when the executor finds out that he legally cannot sell the house and "mind" the money in his account.

huskerdu said:

I agree.
If the sale goes ahead with the executor organising the sale on behalf of the owner, then the owner ( the OPs father) will still have to sign all the paperwork and the sales proceeds will be given to the owner.

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But the executor only becomes the executor when the OP's father passes away. The dad is still alive, so this executor person has no legal authority to act on behalf of the OP's father. As of now, he is merely the husband of the 3 siblings who have the (yet to be activated) power of attorney for their father. If the other third sibling is in the same frame of mind as the OP, I think that the ball is very much in their court in keeping the shady sibling & her hubby at bay.

If the houses is to be sold now, someone has to be given power of attorney to act for him & sell the house. No solicitor is going to agree to handle the sale of a property when the seller has no legal authority to do so. Whether the plan is to give POA to the shady siblings hubby, or be given jointly to all three of them, I really can't see the sale happening at all. Given the age and state of the OP's father mind and health, the odds are very slim that a doctor will sign off on his patient being compos mentos to do this. No competent solicitor will agree to drawing up the POA paperwork unless a doctor does that.

So if things stay as they are, the OP's father passes away, & the executor then kicks things into gear. But the law is very clear on what the executor can and can not do. He can not just sell the house and ferret the proceeds away in his own personal account. When the OP's father passes away, the executor has an obligation to open an Executor Account to handle the affair of the OP's father. This account must be separate from his own personal accounts.

When the house is sold, the monies from the house sale will be deposited into that account by the solicitor who handles the sale. Unless he is a complete crook, there is no way he will deposit them in a personal account of the executor. Or he may pay out 1/3 of the sale proceeds to each of the 3 beneficiaries as per the terms of the dads Will. But the norm would be to hand the monies over to the executor, and let him handle their dispersement to the 3 beneficiaries of the Will.

If the solicitor deposits the funds in the executor account, he will require some sort of proof, signed letters from the beneficiaries etc etc that the funds made it to who they were supposed to in a timely manner, that is the 3 siblings in question. He'll do that to protect himself more than anything.

So overall, I think that the shady sibling and her hubby have less room to do dishonest crap when the OP's father passes away, as opposed to now. As executors, they have no choice then but to do things in partnership with a solicitor & the Probate office. If the OP can keep in touch with the solicitor during all this, and keep him in the picture as to their fears and suspicions, it may not be a bad idea to make sure that things happen as the are supposed to. Technically, the executor is his client and not the OP. He may tell the OP to eff off, but it will be in his best interest to do everything above board. It is his professional reputation on the line if he doesn't.

Sorry for the length of this. I do tend to run on a bit, but it stuck a nerve with me. When my aunt died, the cousins who I thought I had a wonderful relationship with all turned into blood thirsty sharks once they got the whiff of money in the water. It just broke my heart.

For the sake of your father who in fairness to all is still alive and to provide dignity to the poor man, I'd say that a meeting needs to be called between the siblings only (no partners) and any concerns should be voiced.

How many families have been broken by the greed of other family members.

Why did the OP's father not ask one or all of his own children to sell the family home?
Is he being influenced by the "Executor"?
Why did the "Executor" not decline the role even out of respect to the children?

One could also ask why the father chose this person to be the executor when he had 3 children who could do the job?
Strange that he allowed them to be his Power of Attorney but did not allow either of them to sell the home or become his executor? Would 3 heads acting together not be better than one.

Is the father a fool, an uncaring person, a thoughtless person. Does he think that his 3 children are not capable of carrying out his wishes? That they will be fighting amongst themselves or that they are incompetant?

Is he in awe of the person he has nominated as his executor?

If there is to be a family meeting will the "executor" be asked to attend by the father. If that is the case then something very fishy is going on.

We had a situation where the executor insisted that the family solicitor be dropped and a new solicitor put in place, that he would nominate to deal with matters that he could not deal with. The executor suddenly changed from a normal enough "in law" to a superior arrogant uncooperative secretive individual.
Our family couldn't understand why our father did not give the job of executor to one or all of his children. The father thought that the sun shone from this guy's proverbial.
It caused all sorts of problems in the end with some details never resolved. Everybody except the person who was married to the in law didn't want this person as executor but wanted a family member to deal with matters as well as the family solicitor.
It was as if the executor and his wife were above everyone else and that they were giving other family members the proceeds of our fathers will out of their own pockets.

beffers said:

If the houses is to be sold now, someone has to be given power of attorney to act for him & sell the house. No solicitor is going to agree to handle the sale of a property when the seller has no legal authority to do so.

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This is a very interesting post.

If the three siblings have been given Power of Attorney over all of the fathers affairs. Property, papers, care etc but the Power of Attorney has not been executed but is sitting and waiting can someone else come along and act on behalf of the father to sell the house.

I would have thought that this "other person" would just be helping out the father and that it was the father selling the house? That this other person would have no legal standing?

Does an unactivated Power of Attorney have any standing in Law? Or put it another way if an unactivated Power of Attorney exists does it have any legal standing over the "other person" who is muscling in on the sale of the house?

Bronco Lane said:

This is a very interesting post.

If the three siblings have been given Power of Attorney over all of the fathers affairs. Property, papers, care etc but the Power of Attorney has not been executed but is sitting and waiting can someone else come along and act on behalf of the father to sell the house.

I would have thought that this "other person" would just be helping out the father and that it was the father selling the house? That this other person would have no legal standing?

Does an unactivated Power of Attorney have any standing in Law? Or put it another way if an unactivated Power of Attorney exists does it have any legal standing over the "other person" who is muscling in on the sale of the house?

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An unexecuted or unactivated power of attorney has no standing whatsoever. Neither has an executor any standing in advance of a death. So for the property to be sold either the owner (presumably the Dad) has to sign the deeds or, if he is incapable (physically or mentally) of doing so then he would have to be made a ward of court and have a court order to make the sale. The latter is a lengthy process and for someone in their mid-90s who doesn't need the money it seems OTT.

However - although the above is the legal position it is not unheard of for this to be circumvented by having the elderly person sign the sale deeds, or a power of attorney even if not quite up to it. Sadly these situations need to be watched liked a hawk in many families.