# Sorting out an estate with no will



## Brendan Burgess (9 Sep 2004)

Hi ,
   Can anyone help me on this one please? Some time ago my parents died, leaving no will. There property e.t.c. was therefore to be split equally between all the 6 of us. A solicitor was appointed by one of the family to deal with the estate and I personally did not question anything as I knew that one would have to be appointed to do so! He wrote me letters at various times asking for information e.t.c..

About a week ago I had a disaggreement with him on the phone and he told me that his sole client for dealing with the estate was my brother and therefore I was not entitled to ask him anything. I was rather upset about this as I assumed that a solicitor appointed to deal with an estate would have to deal with it equally for all concerned or point out that this was not the case from day 1. Bear in mind that he sent a bill some time ago and he made the assumption that we would all pay the costs equally to him, yet how can he do that if I am not a client of his? Is this usual for solicitors to expect "non clients" to pay part of their fees?
As I see it he cannot have it both ways - expect me to pay fees to him and yet not be willing to tell me the information I wanted! Since he was writing to me and taking instructions from me would that not then make me a client anyway?

Thanks for your help!

Paul


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## gg (10 Sep 2004)

*Res*

Pual B

Your parents died leaving no will , they died intestate, which is the legal term for no will left behind.

When this happens it is best for the sons and daughters in your case to contact the family solicitor.

He will then collect all the information about you parents assets , debts , accounts etc etc etc.

He must then appoint as "Representative for the Estate" or "Executor of the will". What this means is that your brother has been appointed ( in lay terms) as the manager of your parents assets under the scrutiny of your solicitor.

Your solicitor will go through probate, which is a legal process when no will is left. Your brother then takes ownership of all the assets and is then entitled to disperse between the relative under the terms of the Succession Act i.e equal shares.

He also has to take out an insurance policy to cover the value of the estate just in case he does not hand over all the money, assets etc etc.

This policy would pay you and those entitled there losses if your brother ' skipped town'.

So the solicitor just need information from you to establish there life before they died. Your brother as representative manages the probate and then you will receive your entitlement.

Your solicitor should have explained all this to you in writing, so get him to do so, but after all it only money Paul so don't let it ruin your family relations.


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## MOB (10 Sep 2004)

*Solicitor*

This is a perfect example of a common failing in the legal profession (and indeed in many other professions).   The failing is in lack of clear communication at the outset and failure to properly manage client expectations.  However, in the administration of an estate, the correct position (in my view) is as follows:

1.   The administrator of the estate (in this case your brother) is the client.

2.  The solicitor has a duty to all beneficiaries, but he takes instruction only from his client.  

3.If at all feasible, the solicitor should arrange matters so that the administrator is the conduit for all communications.  The good sense of this becomes obvious when you have a large number of beneficiaries.

I rather imagine that if this had been agreed at the outset, you would have had no difficulty accepting the situation.   Instead, you now feel hard done by: the real problem is poor communication at the outset.  The solicitor, incidentally, is probably saying to himself "that's what I get for trying to do a bit extra and be helpful to that guy".  I know, I've done it myself.

As a beneficiary, you are not liable for the costs of administration. The administrator is liable for the costs.  Of course, they must come out of the estate assets and this therefore means that for practical purposes the burden will be shared equally by the six children.

You say that 

"Since he was writing to me and taking instructions from me would that not then make me a client anyway?"

Certainly it might;  but you are not the administrator of the estate;   if you are nevertheless a client, that might entitle the solicitor to invoice you and this would be separate to any bill sent to the administrator;  so I wouldn't go down that road.

The real problem here is in not making things clear from day 1.  (I am assuming that things were not in fact made clear;  But it is  possible that the solicitor wrote to each family member and made it clear that he had been retained by and was acting upon the instruction of your brother, but that you simply failed to understand this).    A mistake certainly, but in fairness not a hanging offence.   Both you and the  solicitor will undoubtedly have learned from this.


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## OxOxO (10 Sep 2004)

*Family meeting.*

But who appointed the brother as spokesperson and then as administrator? Surely the other family members would have had to agree with this. Is it a case where the outspoken member of the family deals with the funeral arrangements/will etc and everyone else whinges and whines from the sidelines but are quite happy to sit on the fence. Or is it a case that the outspoken member of the family is so full of their own importance that they feel they can do what they like without telling the lesser members of the family?


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## PaulB (10 Sep 2004)

*Solicitors....and family fall out!*

Thanks to you all for your posting so far! gg..I appreciate the point you make about not letting family relations fall out due to money. This is not the case with me because I have in fact handed over my share of the estate to another brother of mine who I feel was entitled to it. I will get no money from the estate. But I take your point and agree with you totally on it!

I have not talked to the administrator in over 2 years as we dont see eye to eye! I used to talk to him, but over the last year or so I found out that he and another family member were disaggreeing ( a common thing I'm sure with estates/wills e.t.c. ) but I still thought that the solicitor was acting for all of us. In fact the probate at this point has gone through 3 solicitors offices ( over the last 5 years ) and I have no idea why this is! I don't know how one solicitor can deal with it when their is disaggreement anyway.

It was certainly not made clear from day 1 that the solicitor was only dealing for one client! I think it should have been so that we would have all known where we stood and things could have been taken from there. 

OxOxO...I agree with you. I dont know how one person can become administrator unless all agree. 
I will and have a lot to learn from all this!

How or never thats the state of play as it is. Only thing I would say to all is sundry is always make a will and then there is less scope for arguements!

Thanks to you all for your observations and indeed your help!


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## Marie (11 Sep 2004)

*Solicitors*

I feel empathy with you in your situation.  My mother died 22 months ago leaving a will making myself and my young sister joint beneficiaries.  Mother named her sister (Kathleen) as Executrix.  The estate involves a modest amount of money and a house.  I wished to "buy out" my sister's interest in the house.  The process had hardly begun when the Executrix decided she did not want to be in the middle in any disagreement between myself and my sister on disposal of the property.  She withdrew.  Myself and my sister automatically became "Joint Executrice".  My mother's solicitor (the "family solicitor") was superb and I knew from his handling of disposal of an aunt's estate that his communication was clear and impeccable.  Every one of my aunt's beneficiaries (15 in that case) knew at every stage what was happening, who was doing what, explained in clear unambiguous language, in writing.

Unfortunately when he required both myself and my sister to attend his office to give a "joint instruction" my sister went (behind both his and my back!) and appointed another solicitor.  The first I knew of this was a letter from the "family solicitor" saying he was no longer involved and wishing me good luck!!!

There was nothing complex and no problems whatsoever with the estate.

However every single step of the process and the probate for the last 22 months have been wrangled over and contested.  I was not aware until a few weeks ago (when I became alarmed she would pocket the proceeds of the sale of the house......which she continues to refuse to allow me to purchase!!!) that my sister had signed a document with the solicitor and "the estate" was paying an insurance against any such eventuality.  There has been a painfully-attenuated triangular communication loop on every single issue.  For example I assumed that since my sister had appointed this particular solicitor she had established in advance what her fees would be.  This had not been done.  When at the 11th hour I asked for an estimate I was shocked at the very large sum and questioned it........only to be immediately told by the solicitor that if I didn't like it I could go and get ANOTHER solicitor to represent me and she would continue to act for my sister!!!

Throughout this very stressful time I have never at any stage felt secure or informed about the process.

It is only when confronted with the situation of the death of a parent that aspects of how the law works become relevant and then it's difficult (without paying for it!!) to get the necessary information.  Until this affair I had no idea that "anyone" could apply to the courts for Power of Attorney over the affairs of a relative and there is scant investigation of motives. Like you I was astounded to learn that any member of the family could obtain legal authority to execute the estate without the agreement of others involved. It is the lack of clarity  between what constitutes "personal authority" and "legal authority" that creates such stresses in families after a bereavement.

I found a number of threads here on AAM of enormous help in just keeping me sane in the early months.  At this stage - 23 months after my mother's death - the estate is still not settled, the house is still not sold (or if it is I haven't been informed - which is quite likely!) and the probate was completed in April.

My advice is to take care of yourself and try to get as much external support from friends and other family members as possible through what can be a real ordeal.  Try to communicate as clearly as possible with all concerned.  I found sending copies of everything I wrote, e-mailed or said to one party, to the other helped.


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## Unregistered (1 May 2005)

Help needed - My mother died without leaving a will and a sibling who stayed in the home took over and keeping for themselves and family.  Can that be done and if I wanted to contest it will all the other members of the family have to contest it as well.  Say if only one member want their share will it matter that not all the other family members are doing the same?


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## RainyDay (2 May 2005)

Unregistered said:
			
		

> Can that be done and if I wanted to contest it will all the other members of the family have to contest it as well.  Say if only one member want their share will it matter that not all the other family members are doing the same?



Sympathies on your loss.

While I'm no expert, I'd imagine that the lack of interest of other family members in challenging the will would not stop you making a challenge. It may, however, be quite significant if the matter ultimately came to court, as I could imagine a judge/jury reading a lot into the fact that the other family members were quite satisfied with the outcome.

Your best option is to consult a solicitor initially. Did the family member who has taken over the house provide care for your mother over a period of time?


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## Unregistered (5 May 2005)

I'm also involved in the fallout after our mother died without making a will.  It is such a shame when previously warm family relationships suddenly turn cold when greed for money and property raise their ugly heads and family bonds evaporate like steam.
In this case there is no family agreement yet about what will happen to the estate.  Probate hasn't been applied for yet.  I'm afraid some other members may go behind our backs and apply for probate.  Is this possible?  Can we make sure to be informed by the probate office if an application can be made?
It will be such a terrible shame for this to turn into a huge inter-sibling legal battle with solicitors employed for every person, the family to become bitter and fall out completely and the lawyers to end to end up with everything in the end.
If I've learned anything, it is to make a will, and to do it sooner rather than later.


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## Unregistered (5 May 2005)

"Can we make sure to be informed by the probate office if an application can be made?"

     This should have been:  Can we make sure to be informed by the probate office if an application IS made?"  

Also, is there a time limit in which probate has to be applied for?
Is there any penalty or drawback for delaying initiating the probate process?


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## Unregistered (5 May 2005)

You can enter a caveat which effectively would block any one else making an application without your consent to set it aside- it lasts 6 months or until set aside voluntarily or by court. You must then renew or it will expire.

There is no time limit within which probate must be applied for.

The only penalties possible are interest on CAT or Probate tax if applicable.


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## Wherethere (9 May 2005)

How would I go about finding out if probate has been granted or applied for?


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## Vanilla (9 May 2005)

Ask the probate office.


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