# Executor reserving their rights?



## Angeleen (18 Oct 2021)

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?


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## tom_12345 (18 Oct 2021)

"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.


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## Angeleen (18 Oct 2021)

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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## tom_12345 (19 Oct 2021)

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.


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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## mf1 (19 Oct 2021)

"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


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## Peanuts (19 Oct 2021)

Have you talked to your brother about this?  The solicitor may well have been acting on his instructions.


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## Buddyboy (19 Oct 2021)

Heed MF1's comments, they know of which they speak.


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## Angeleen (20 Oct 2021)

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...


Thank you for all your help.


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## Angeleen (20 Oct 2021)

*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.


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## Angeleen (20 Oct 2021)

*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.


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## mf1 (20 Oct 2021)

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


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## Thirsty (20 Oct 2021)

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?


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## mf1 (20 Oct 2021)

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


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## Thirsty (20 Oct 2021)

You would have expected some form of due process though?


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## Shirazman (20 Oct 2021)

Thirsty said:


> You would have expected some form of due process though?



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.


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## Thirsty (20 Oct 2021)

Shirazman said:


> solicitor who (presumably) has merely carried out her brother's instructions.


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.


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## Clamball (20 Oct 2021)

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.


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## Thirsty (21 Oct 2021)

Clamball said:


> The solicitor obviously thought you were both being very sensible allowing one of you to do all the dealings with the solicitor.


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.


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## Johnno75 (21 Oct 2021)

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).


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## Thirsty (21 Oct 2021)

> The Solicitor has absolutely no obligation to a third party in this instance.



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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## twofor1 (21 Oct 2021)

I have appointed Paddy and Mick to be my executors, because I want both Paddy and Mick to do the job, not Paddy or Mick.

Perfectly understandable and acceptable if one of the two won’t or can’t do the job for the other to do it alone.

Does seem strange though that where 2 executors are named in the will that instructions can be given from one and the other is not at least notified, so they can have an input if they are willing and want to do so.


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## Johnno75 (21 Oct 2021)

Thirsty said:


> 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.


Nope. 

The executor isn’t “duly appointed” until the Grant of Probate has issued. Until that point, the executor is merely a “named” executor. 

The Solicitor owes a duty only to their client. And the Solicitor acts according to the client’s instructions. If the executor “A” client has not instructed the Solicitor to write to named executor “B”, the Solicitor should not so write. 

Simple.


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## Thirsty (21 Oct 2021)

So in your book who ever gets to the Solicitor first can effectively shut out the other executor?


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## Johnno75 (21 Oct 2021)

Thirsty said:


> So in your book who ever gets to the Solicitor first can effectively shut out the other executor?


Not in my book, it’s just the way it is. 

I don’t make the rules.


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## Thirsty (21 Oct 2021)

It still does not make sense to me that either exec can effectively remove the other with zero reference to the other.

In my view Exec B in this case has legitimate grounds for complaint re Solicitors actions in failing to write to them.

A professional person would, on my view, at the very least want to make sure there could be no possible implication of miscommunication; and a two line letter to both execs would do exactly that.


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## Johnno75 (21 Oct 2021)

Thirsty said:


> In my view Exec B in this case has legitimate grounds for complaint re Solicitors actions in failing to write to them.


Why are you blaming the Solicitor? He’s done absolutely nothing wrong. 

He cannot unilaterally act and start writing to third parties unless so instructed, even if they are named as an executor in a will . If there is any issue here, it’s between Executor A and Executor B. 

Now, the Solicitor in this instance may well have advised Executor A that it might be prudent to keep Executor B in the loop, or not, but we will never know. Executor A may have had good reason to decide to proceed alone. 

If I were named as a joint executor in a will and I could stomach the company of my named co-executor, then I would happily be making a joint application with them, share the burden and all that. 

But the law allows for executors to “go it alone” without reference to the other executor. According to the Succession Act, any one of two or more executors can apply for probate, or they can do so jointly. So there is nothing to stop either  proceeding independently.


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## Thirsty (21 Oct 2021)

> [Solicitor]... cannot unilaterally act and start writing to third parties unless so instructed, even if they are named as an executor in a will


That statement makes zero sense to me.

Suppose Smith & Jones Solicitors is advised by surviving (non-exec) family member that Uncle John is dead but they don't have details of his will other than knowing that Smith & Jones hold the original.

One would expect that the first act of said Solicitor is to pull up Uncle John's will and write to the execs named and appointed by Uncle John in that will; however many there might be.


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## jpd (21 Oct 2021)

Not at all - the fact the Smith & Jones are holding the will does not give them any legal rights to do anything

Any one of the "joint" executors can apply for Grant of Probate without reference to the other "joint" executor


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## Thirsty (22 Oct 2021)

@jpd So you don't believe that a prudent and reasonable legal professional would write to the executor(s) having been notified of the death of their client?

They would just sit on their hands and do nothing?


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## jpd (22 Oct 2021)

Yes. Overseeing the writing of a will and holding it does not entail any obligation (legal or moral) to act in the event of the death of their client.


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## Thirsty (22 Oct 2021)

To review, the earlier statement was: 


> [Solicitor]... *cannot unilaterally act* _(my emphasis)_ and start writing to third parties unless so instructed, even if they are named as an executor in a will


To which my response was in the scenario where their client passed away a prudent and reasonable professional would write to the execs having been notified that the family did not have details.  So therefore they *could *"unilaterally act".  

It's hard to believe that an estate could end up mouldering for years, or a family end up applying for probate under intestacy rules, when a valid will is sitting in a Solicitors safe, but said Solicitors sit on their hands saying they are not allowed to contact executors.


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## Johnno75 (22 Oct 2021)

Thirsty said:


> To review, the earlier statement was:
> 
> To which my response was in the scenario where their client passed away a prudent and reasonable professional would write to the execs having been notified that the family did not have details.  So therefore they *could *"unilaterally act".
> 
> It's hard to believe that an estate could end up mouldering for years, or a family end up applying for probate under intestacy rules, when a valid will is sitting in a Solicitors safe, but said Solicitors sit on their hands saying they are not allowed to contact executors.


You have strayed way off course here. 

The OP’s issue was to do with another executor acting unilaterally to their exclusion. It has been pointed out that this is lawful, indeed envisaged and permitted by the Succession Acts, and that the Solicitor acting for the appointed executor has acted entirely appropriately. 

You have brought into the conversation an entirely new issue which has to do with the custody of wills to which completely different legal considerations apply. The law here is per @jpd’s post. 

However, a Solicitor who is the custodian of a will, whilst under no obligation to do so, may well think it prudent and reasonable to notify the executors. Many do, once they become aware of a death. 

That said, Solicitors do not necessarily peruse the death notices pages daily just in case a client or former client may have died. Usually it’s the beneficiaries or executors who will be proactive and contact the solicitor to establish whether a will exists. 

Some wills do end up mouldering for years because either the Solicitor isn’t aware of a death or the beneficiaries aren’t aware of who the testator’s solicitors are who might be in possession of a will. 

To bring matters back on topic, where a Solicitor is instructed in the context of the administration of an estate by an executor, he must act in accordance with instructions. If the instructions are not to contact named Executor B, then he must abide by that. Or if the Solicitor thinks Executor B ought to be contacted, he must seek instruction from Executor A and act accordingly.


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## Thirsty (22 Oct 2021)

My argument is that a prudent and reasonable legal professional can indeed act unilaterally; the earlier assertion was that they could not.

Extrapolating from that therefore a prudent and reasonable legal professional, in the OPs scenario, would write to both Execs A & B, saying that A has instructed me to proceed with B 'reserved' .

As that did not happen, I believe the OP has legitimate grounds for complaint that Solicitor did not take minimal action to ensure no miscommunication. 

How far that complaint might go is another story, but if I was in this situation, I would be writing a letter.

There's any number of issues with our current probate process that need to be addressed, this is clearly another one.


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## Johnno75 (22 Oct 2021)

Thirsty said:


> My argument is that a prudent and reasonable legal professional can indeed act unilaterally; the earlier assertion was that they could not.
> 
> Extrapolating from that therefore a prudent and reasonable legal professional, in the OPs scenario, would write to both Execs A & B, saying that A has instructed me to proceed with B 'reserved' .
> 
> ...


The consistent theme in your posts on this topic is that the Solicitor is somehow at fault. He is not.

There are times when a Solicitor can of course act unilaterally, just not in the within context. Imagine if Executor A had not wished for Executor B to be involved in the administration and the Solicitor unilaterally wrote to Executor B (as you would have had the Solicitor do) stating that Executor A was proceeding alone. In these circumstances the Solicitor could land in a world of trouble with Executor A for breach of confidentiality, breach of duty etc. Executor B is free to get their own legal advice.

There are no grounds for complaint, legally, regulatory or ethically. That you believe so is your own prerogative but your belief, with all respect, is incorrect.

As an aside, we don’t actually know in the OP’s scenario that the Solicitor was the custodian of the will.

I’ll finish on this - it does sound that the OP (Executor B) was deliberately sidelined by Executor A, particularly when the original Probate Application form, we are told, contained Executor B’s name. As I stated previously, the issue of contention here is between Executor A and Executor B and Executor A’s behaviour. Not the Solicitor’s.


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## Thirsty (22 Oct 2021)

Johnno75 said:


> ...your belief, with all respect, is incorrect.


It's entirely reasonable to state that you do not concur with another's belief.

It is not however reasonable to state that another's belief is "wrong".

If we fail to assert our concerns, we will never get any change.


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## Johnno75 (22 Oct 2021)

Thirsty said:


> It's entirely reasonable to state that you do not concur with another's belief.
> 
> It is not however reasonable to state that another's belief is "wrong".
> 
> If we fail to assert our concerns, we will never get any change.


Grand so.

You are entirely 100% correct in your beliefs.


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## Thirsty (22 Oct 2021)

Johnno75 said:


> Grand so.
> 
> You are entirely 100% correct in your beliefs.


How silly


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## MOB (22 Oct 2021)

"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."B

Given what OP has said, it seems to me that there is a fairly mundane explanation.

Brother went to solicitor and said "Sis and I agreed I would tackle the legal stuff".  

Solicitor would then have asked if sister intended to renounce.  On being told, presumably, "no" solicitor would have said "ok, we will proceed on the basis you have outlined and if your sister decides she wants to be involved, well her rights are fully reserved, so there is no problem there either".

All fairly mundane.  A solicitor who said "I can't just take your word, I'll have to write to her" would be accused of making extra work......


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## Thirsty (22 Oct 2021)

MOB said:


> solicitor who said "I can't just take your word, I'll have to write to her


Trust but verify being the key words here.


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## MOB (22 Oct 2021)

Thirsty said:


> Trust but verify being the key words here.


But the solicitor does not need to verify here.  Nothing has been done to reduce, limit or in any way prejudice her rights at all.That is what it means when her rights are reserved.    She can still exercise her rights and the solicitor therefore has no need to verify anything.


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## Thirsty (22 Oct 2021)

"Trust but Verify" is an idiomatic term of speech.

Again, in my view a prudent and reasonable legal professional would send a short letter to both Execs; that Exec A will complete probate with Exec B reserved.


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## Shirazman (22 Oct 2021)

Thirsty said:


> "Trust but Verify" is an idiomatic term of speech.
> 
> Again, in my view a prudent and reasonable legal professional would send a short letter to both Execs; that Exec A will complete probate with Exec B reserved.



Your view is noted.


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