How do you treat executors who are prolonging probate?

Hello

I am looking for advice from my fellow practitioners.

Our borough has many homes which are empty as a result of the owner passing away. However in some cases the executors (often family members) are reluctant to progress probate.

This means that the property is sitting empty, with a class F council tax exemption. Without paying council tax there is even less of an incentive for probate to be achieved.

I understand this can be an emotional time for many people, however, how long would you leave it before you contact a family for regular updates or even consider enforcement action?

Your advice is greatly appreciated.

Forums: 
Council tax - discounts, access to info etc

I tend to allow a year from the date of the deceaseds death before I start pushing for movement. Obviously I'm careful not to land a letter or anything within a few weeks of the first anniversary of a death, so maybe 13 months to be on the safe side.

Maybe thats linient, maybe it's harsh?

If the property is still in probate after 6 months I write out to the Executors just to make them aware of our empty homes grants including advice and support.

Hi

Yes thats a good question, any guidance, template letters, good practice would be useful

Many thanks

Heather

I give it 2 years and then aaply our standard empty homes process. Most people I find have fallen into 3 categories. 1. Emotional attachment; 2. apathy/ineffectitive; 3. sole beneficiaries that want to hang on to the capital value without having to let it or pay council tax.

We are just about to make a cpo for a case in category 2 much to the delight of surrounding residents.

Sue Li

Compulsory Purchase and Enforcement Officer

Derby City Council

Hi All

Always challenging, however, there was a relevant Valuation Tribunal case back in 2010 - Chadbourne v Tendring District Council which really helps. The appeal number: 1560M46870/022C/2. The action was taken by the Council Tax department and the decision was clear and helpful.  I often quote when dealing with long term cases which we consider to be greater than two years.    

I will be happy to send anyone a copy of the case.

 

Will      

 

Hi Will, Would you mind sending me a copy of the tribunal details please? my email address is nicola.carter@rochdale.gov.uk.  I am so fed up of not being able to make progress with so many properties because the families haven't applied for probate, the ones which are not being maintained are easy but the ones that are not causing a nuisance etc are just stuck there!!

Regards

Nicola

 

We CPO'd a property last year. It had been left unoccupied and the estate unresolved since the death of the owner in 1989.

At OCC we don't get involved unless 2yrs have elapsed or, it has become a nuisance that said, we do create a file with details of executors etc and other property history after one year of vacancy. Main reasons for not dealing with it earlier is because it is hoped that reasons why an estate isn’t established such as; emotional consideration, apathy, family disputes and complicated ‘trust’ implications.

We attempted to negotiate with the executor, the son in this case, including offering to purchase the property from the estate. We also attempted to contact other family members in attempt to encourage their involvement but without success. The son only completed the probate process following the CPO being vested in the Council.

Can I also have a copy of the decision.

mmutch@oxford.gov.uk

 

Mel Mutch 

Oxford City Council

Hi at Blackburn with Darwen we would generally wait for 12 months after a property has been given an F1 council tax classification before contacting the executors for an update on their intentions for the property.  However, if the property is causing nuisance/having a negative impact on the neighbourhood we would make contact much earlier.  In relation to enforcement action we would not make any suggestions of this for 12 months. 

Nicola J Fox

I was given some advice a short while ago about two pieces of legislation that can be used under these circumstances.

The first invloves Section 116 of the Senior Courts Act 1981 under which an application to the courts can be made to remove a named Executor or an entitled Administrator before they have have gone through probate.  Useful in circumstances where there is undue delay in applying for probate.

The second involves Section 50 of the Administration of Justice Act 1985 under which an application can be made to the courts to remove the Personal Representative (Excecutor or Administrator) after grant of probate.  Useful in circumstances where probate has been granted but there is undue delay in administering an estate.

The information was provided to me during a conversation with Fraser & Fraser, who informed me that it is something they use themselves.

It is not something we have used in Liverpool yet, but if the right situation arises, it is something we will explore.  I believe application is to the High Court in each case but someone may be able to put me right on that point.

Suggest it to your legal services team and stand back.  Once the shaking has stopped and they re-appear from their shell, they may be able to advise you further.

If you do utilise this legislation, I am sure we would all be interested to know how you got on.

Terry Curnow

Liverpool City Council

The last time I was involved in a s.116 SCA application it was made to the District Probate Registrar. I suppose the thing is that estates ought to be administered in good time (and how long that is might depend on the facts of each case) and s.116 SCA and s.50 AJA allow people who are unwilling and / or unable to handle it themselves to be relieved of their responsibility, as well as enabling court-authorised people to get things moving when there's no-one else to hand (which is one use of an order under s.116 SCA). Nick Pritchard-Gordon's interesting post below includes an example of what looks like the outcome of a possible application for a s.116 order.

Thanks for that information about application to the District Probate Registrar.  As I said I wasn't sure about the application but for some reason the High Court seemed to spring to mind.  That makes things a lot easier if the application is to the District Registrar.

Terry Curnow

Liverpool City Council

We allow at least one year before contacting the executors and generally find most properties are being marketed or being renovated to let.  We have a number of financial schemes available to assist in bringing these properties back into use.   However, there are number of executors/family members who refuse to engage and continue to do so.   Until legislation is passed whereby Probate must be applied for within a set time frame this problem will continue.  

If within a year of death and the prop is not causing a problem, I do little. If more than a year, I trace & contact to offer help. If prop remains a problem and they don't respond positively, I remind them of their fiduciary duty and ask them, "Is this what your relative wanted when they appointed you to administrate?" I ask if they actually do want to administrate and advise of the alternatives. I have lost count of the number of cases where I've helped Exors to appreciate their duties, to seek legal advice and to instruct a solicitor to handle the estate in their place.

Once a year, I list the Class F's to identify which solicitors are most active locally. I write to the practices to offer them help with their most sticky cases. I now work closely with half a dozen practices. They like it that I can bring to bear a pressure that they can't. In some cases, EH involvement can help willing parties overcome the reticence of other parties. The Class F relationship with local practices has expanded from straight Probate into tricky Court of Protection, conveyancing, advising on care fee charges, etc.

Last year, I had 3 cases where it wasn't just the estate of the deceased needing administration, as there are antecendent estates also needing Probate. One involves an unregistered property that had been let out by the owner till he died intestate. He’d inherited it from his Aunt, who died intestate. She’d inherited it from her brother who also died intestate. Three estates to administer …way too complex for the amateur. Luckily, the natural heirs are on hand, two sons. One lives in Australia another in Zimbabwe (making me a Global A to Z practitioner in just one case, ha!) They asked me to find a UK solicitor to administer the estates, plus first registration and conveyancing. The local solicitor will then liaise with their own solicitors in their respective countries.

Finally, we've done 'Creditor as Executor' before. One case, the son/heir/Exor didn't want to administrate. Care home fees were owing, so our Lawyers applied to be Administrators. We got Letters, sold the property, settled all liabilities and made the remaining proceeds over to the Courts for the son to claim. 10 years on, he still hasn't, despite us prompting him to do so.

Will – can you post the Tribunal report on this site?

Nick P-G
Reading BC
01189373091

Nick this is so interesting and such a great example of how empty homes work cuts across different areas of law (eg administration of deceased estates and elderly client / Court of Protection to name but two) as well as showing that an empty property in UK can easily devolve overseas. As regards your "Creditor as Executor" case, that sounds like it could perhaps have been under s.116 Senior Courts Act - I wonder if that's what it was.

I've added the Appeal decision to our Information Library.

It's flagged for Full Members only (Premium content) so you'll need to be logged in to access it, for reasons that I am sure those of you who stump up the membership fees to keep  EHN afloat will understand