# Fair deal  - can you replace an executor?



## Alicia (6 Aug 2016)

I understand from another Law website an application can be made to the Circuit Court by way of Originating Motion, seeking the replacement of the executor after a year as an executor is given a year's period of grace normally, known as the "executor's year" within which to gather in the deceased's assets and to administer the estate. After that period has elapsed, a court is very open to removing an executor. The application is grounded on an affidavit which shows cause why the executor ought to be removed. Normally, it would either be for *cause* shown or simply by reason of the delay in administering the estate. As the role of an executor is non-paying in Ireland, the court is concerned only to see that the administration of the estate is carried out expeditiously and all matters dealt with.

My question is can the *cause* be incapacity to perform this role due diagnosed dementia? 

This would be extremely helpful to know as my  father  dies in 2015 and appointed my mother as sole executrix to his estate. We understand he has left her the house but his name is on the title deeds.  She is incapable of performing these duties of an Executrix. 
We having taken legal advice and advised to get probate and the title of the house put in mom names we would have to go through various steps with the High Court ultimately leading to having to make mom a ward of court. Besides the expense involved we would not want to do this  but we do need to fund mom's long term care and therefore need to be in a position to use the estate to fund this... 

We already have the fair deal ( nursing home support) approval but think we might not get the ancillary state support (loan) due the above and would rather not have the charge on the house anyway so again another reason for trying to address this via replacing the executrix route... 

Any information or similar experiences would be very very much appreciated.


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## irishmoss (6 Aug 2016)

Sorry for your loss

You can apply to the court to  obtain a probate officer’s order to issue a grant to a committee for the use and benefit of your mother during her incapacity in pursuant to Order 79 Rules 26/27 of the Superior Court Rules. In other words one of her children can act on her behalf. It will take about 4-6 weeks for the order and another six months for Probate. You also have to seek permission from the Ward of Court before getting the order. This not the same as making her a ward of court.
From reading about this before on this very informative site, it is quite a simple procedure but on talking to the probate office you do need a solicitor to do this so I have no idea on cost.

Would anyone here be able to advise further on the costs that a solicitor would charge?


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## Alicia (7 Aug 2016)

Thank you very much for your reply ...but I undertood that  in order to administer the Will and vesting of title in the house in Mom’s name, etc, the next step needed would be to make Mom a “Ward of Court “so the committee of the Executrix can administer the will on her behalf.  
If approved, Mom would be appointed a “case officer” and the committee members will have to account to this officer throughout the wardship for a financial/personal transactions relating to Mom. This is not what we want to do but unless I have misunderstood you, you are implying that the committee member, (one of her family)  can do this independently? Is that correct?  

Yes indeed it does need a solicitor, and if it's any help, I've been quoted to extracting a Grant of Probate and Administering the Estate of the Deceased is €2,750, plus VAT. 

However what I am really wanting to do is replace the executrix on the grounds of  non performance for the above cause and if I could request an "*ordinating motion*" in this circumstances?


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## irishmoss (7 Aug 2016)

It is my understanding that your next step would be to get a probate officers order to act as committee to your mother. You will have to get a letter from your mams doctor outlining her mental capacity. You then apply to wards of court office to get their permission ( again she is NOT being made a ward of court) and then you apply to the probate office to ask them to give an order to allow you to act as committee to your mother. You then proceed to take out probate. This allows you to act on her behalf during the time it takes to finalise the wishes of your father. From reading it seems your father was the owner of the house and it was not in joint names?

This will incur and additional charge on top of your fee quoted to take out probate.

You could get the first part done with a solicitor, and take out probate yourself if you had the time to do it so that would cut out the €2750 plus vat part

You can email the probate office, they are extremely helpful, outline your case to them ProbateGeneralOffice@courts.ie

The specific rule you are looking for information on on  is Order 79 Rules 26/27 of the Superior Court Rules. If you are getting a solicitor ask him to quote you for this and refer him to Order 79 rules 26/27


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## irishmoss (7 Aug 2016)

I should have clarified, yes this allows you act independently as such. Never mind looking at how to replace the executor, concentrate on Order  79 rules 26/27
Here is the link. Look under Committee
[broken link removed]


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## Alicia (7 Aug 2016)

Ok and yes, not joint names. Thank you for the Order rules and probate email.


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## Alicia (7 Aug 2016)

..  and assuming late father has left family home to mother under terms of the will, the committee member can get on with the administration of his estate which will involve the vesting of title in the house in mother's name. However mother having title to the house will prevent our ability to sell it which we need to do to fund her long term care (really rather not go for nursing home support loan as their is then a charge on the property) 
...so how could we ( I and my siblings) take that title instead ? 

I hope to have two medical practitioners assessments of capacity reports along with reports received already that will verify mom's mentail incapacity so could that be a route to gain title in the house?


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## irishmoss (7 Aug 2016)

Okay  sorry I thought the preferred option was the nursing home support loan. In that case you will have to apply to make her a ward of court, a lengthy costly route


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## irishmoss (7 Aug 2016)

Just to add, no you will never be able to take title of the house. Your options are go the route I suggested and put house in your mom's name and then either take out the nursing home support loan which will have a charge on the property or the family make the contributions to the nursing home themselves. You cannot rent the house otherwise 80% of any income will go to HSE
If you put the house in her name, the charge only applies for three years. If you don't, make her a ward of court and sell the house you will be charged 7% (I think this is the rate at the moment) on any cash assets she has, it won't reduce after the three years


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## Alicia (7 Aug 2016)

No, thank you, this is helping me because now I see replacing the executrix route isn't going to give us title to the house either... It's rather a case of disputing the will I guess


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## Alicia (7 Aug 2016)

Ok would the HSE give us the loan if we could provide evidence (the will) that my father had left the estate to my mother? This would avoid the cost of having to go through probate via committee member acting for mom and administer the Will when we will have to do it again when my mother dies?


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## irishmoss (7 Aug 2016)

Alicia said:


> No, thank you, this is helping me because now I see replacing the executrix route isn't going to give us title to the house either... It's rather a case of disputing the will I guess




No I don't think disputing the will is an avenue, you have no grounds for that


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## irishmoss (7 Aug 2016)

Alicia said:


> Ok would the HSE give us the loan if we could provide evidence (the will) that my father had left the estate to my mother? This would avoid the cost of having to go through probate via committee member acting for mom and administer the Will when we will have to do it again when my mother dies?



Have you spoken to the HSE?  What have they advised? You have raised an interesting point though. At the moment you mom is a beneficiary, she has not the title to the property.

I would love to hear what MF and Vanilla (members of this forum) think on what her legal status is

In our case our parent was left a property after they had entered the nursing home. We informed HSE, they calculated the increased payments from the date the actual transfer took place even though he was a beneficiary while in the nursing home for the previous three years. So they did not look for any back payments

At present in my lay reading of this your mother has no assets so maybe she is not liable for any fees

I can only speak from personal experience. I also know another person who had no assets except they were a beneficiary to an estate at the time they entered the nursing home and they were not charged either. Whether they told the HSE I have no idea. But when you look at it, at the moment your mom has the right to inherit the property through the probate courts but until such time as a transfer takes place she has no assets

Please update us on how you get on!


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## irishmoss (8 Aug 2016)

irishmoss said:


> Sorry for your loss
> 
> You can apply to the court to  obtain a probate officer’s order to issue a grant to a committee for the use and benefit of your mother during her incapacity in pursuant to Order 79 Rules 26/27 of the Superior Court Rules. In other words one of her children can act on her behalf. It will take ?



Sorry but on reading the rules on this again, the only people who can act are the residuary legatee and devisee, so it may not apply in this case.


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## twofor1 (8 Aug 2016)

Alicia said:


> Ok would the HSE give us the loan if we could provide evidence (the will) that my father had left the estate to my mother? This would avoid the cost of having to go through probate via committee member acting for mom and administer the Will when we will have to do it again when my mother dies?



I am sure your Mam’s circumstances are not unique, phone your local Nursing Homes Support office for advice on your application, I always found them very helpful.

It seems to me the simplest thing to do would be for you to be your Mam’s care representative (You can do this without legal representation) and apply for the ancillary state support.

If you do get approved it means the HSE consider the house to be your Mam’s and there will be a 22.5% charge on the house which will have to be discharged when the house is eventually sold.

Either way, your Mam will get the care she needs now without putting any financial burden on the family.

The procedure for becoming a Care Representative is dealt with in Section 7 here;

http://www.hse.ie/eng/services/list/4/olderpeople/nhss/National Guidelines for the Standardised Implementation of the Nursing Home Support Scheme.pdf


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## mf1 (9 Aug 2016)

"I would love to hear what MF and Vanilla (members of this forum) think on what her legal status is"

Well, mf would be going with the original legal advice given:

"We having taken legal advice and advised to get probate and the title of the house put in mom names we would have to go through various steps with the High Court ultimately leading to having to make mom a ward of court.Besides the expense involved we would not want to do this but we do need to fund mom's long term care and therefore need to be in a position to use the estate to fund this... 

We already have the fair deal ( nursing home support) approval but think we might not get the ancillary state support (loan) due the above and would rather not have the charge on the house anyway so again another reason for trying to address this via replacing the executrix route... "


It's called trying to be creative and over complicating when you don't like the advice you've been given


mf


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## Alicia (19 Aug 2016)

irishmoss said:


> Have you spoken to the HSE?  What have they advised? You have raised an interesting point though. At the moment you mom is a beneficiary, she has not the title to the property.
> 
> I would love to hear what MF and Vanilla (members of this forum) think on what her legal status is
> 
> ...




They have advised if you can get a copy of the will this should suffice.  I think this is an important point overall because if we hadn't stated on the financial assessment form that mom was the owner/ has this asset, ( which technically she doesn't and we are making an assumption around what is in the will) then our total weekly contribution would have been less and we could have potentially funded it ourself.


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## Alicia (19 Aug 2016)

twofor1 said:


> I am sure your Mam’s circumstances are not unique, phone your local Nursing Homes Support office for advice on your application, I always found them very helpful.
> 
> It seems to me the simplest thing to do would be for you to be your Mam’s care representative (You can do this without legal representation) and apply for the ancillary state support.
> 
> ...



Yes I agree and thanks for the link.


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## twofor1 (19 Aug 2016)

Alicia said:


> I think this is an important point overall because if we hadn't stated on the financial assessment form that mom was the owner/ has this asset, ( which technically she doesn't and we are making an assumption around what is in the will) then our total weekly contribution would have been less and we could have potentially funded it ourself.



I think you are better off being upfront from the start, I would guess questions would have been asked if the family home not been mentioned in your application, even if this went unnoticed, there are catch ya later clause's.

Have a look at, If my circumstances change at the bottom of page 1, and the two paragraphs in black at the bottom of page 6 on the application form;

http://www.hse.ie/eng/services/list/4/olderpeople/nhss/AppForm.pdf


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## irishmoss (21 Aug 2016)

I spoke to HSE regarding our own case last week. We got a recalculation done because our father inherited property. They told me that upon death the HSE will ask for a schedule of assets of the deceased. So if you don't declare at the start they will find out in the end.


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## Alicia (22 Aug 2016)

Thank you twofor1 and irishmosss, well noted.


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