# Executor's Expenses in Settlement of Mother's Estate



## Marie (13 Nov 2004)

I'm hoping one of the solicitors on AAM or someone who has been in this situation can help.

I am joint executrix with my (younger) sibling in finalising our late mother's estate.  She and I are sole, joint beneficiaries.

Mother's will is for a 50/50 split and her verbal wishes - expressed to both of us on many occasions - was that we co-operate and do the work together.

There were no obstacles contestations or difficulties but my sister from the outset refused to meet with or discuss with myself.  She took a unilateral decision to switch the business away from my mother's solicitor at the outset of the probate (2.5 years ago now!!) to one of her choosing when he required us to both come to his office and give a joint instruction.  My sister lives in Holland and I live in the UK.  

The solicitor is now ready to disburse the funds and has sent me a Testamentary Account for my acceptance.  In addition to the solicitor's fee of Euro 11,804.00 there is an item:- "Expenses lawfully accruing to Ms B.C. (my sister) as expenditure on behalf of the estate from 2002 to date......Euro 7,887.50.

As she did not clear or discuss this expenditure with me and in fact rejected every effort made to communicate on, for example, safety and maintenance of the family home which was empty, what should I do?  In the circumstances, given the clarity of my mother's Will (50/50, both do the work in co-operation) this should not be included in the solicitor's Testamentary Expenses.

Can anyone help?  If you don't actually have legal knowledge or experience of this kind of thing, your view of it would be helpful.


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## Marie (13 Nov 2004)

*what does it mean to be a joint executor?*

Realise this morning I have not phrased my question very well so here's another attempt.  Can one Executor of a Will act independently in a case of Joint Executorship?

If my sister (with whom I am Joint Executor of the will) has acted without my agreement and in some cases, expressly against my stated wishes, am I financially liable for expenses thus generated?  For example I suggested via the solicitor immediately after my mother's death that to ensure the safety of the property left to us jointly  the house be rented short-term to a student at  a nominal rent - which would secure the house and mean we would not have to continue paying out standing charges for utilities on an empty house.  Sister's response was categorical "no".  As the 2.5 years the house was unoccupied on two occasions the double-glazed window at front  was put in by vandals.  The expenses my sister is now claiming are for replacement of two damaged windows, increased insurance for an empty property, "caretaking fee" to the next-door neighbour for periodic inspections to see the house wasn't squatted, and payment for utility standing charges (phone, electricity and gas).

In these circumstances and given that my sister refused to even consider the alternatives (which would have saved all this expenditure) are "Expenses lawfully accruing as erxpenditure on behalf of the estate from 2002 to date"  allowable?  What difference does the term "lawfully accruing" make in this context?  Would my own expenses of about Euro 10,000 (maintaining the large garden, airfares to be in Dublin during cold spells to ensure house was adequately heated to prevent pipe freezes/bursts etc.) be "lawfully accruing"?  What should I DO about this?  Can the solicitor deduct an additional E7,887.50 from the estate to my sister's benefit?  If this is possible then the payment feels to me like insult after injury as I have had a very difficult time with my sister's irrational behaviour and was advised by my solicitor here in the UK at one stage that I should start proceedings to have her removed from her role of Executor as she displayed by her behaviour that she was "unfit".

This is turning into a bit of a rant so before I chunder on, any thoughts or ideas that could help me make sense of this?


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## ClubMan (13 Nov 2004)

*Re: what does it mean to be a joint executor?*

Sorry to hear about your sticky situation. I can't really offer any help other than to suggest that you ask the solicitor to explain/justify the expenses claim if she is officially acting for you both at this stage or even if she's not. I have a feeling that you need a formal legal opinion on this matter to be honest.


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## Marie (14 Nov 2004)

*what does it mean to be a joint executor?*

ClubMan - thanks for taking the time to respond.  I have no doubt my sister has provided an itemised list complete with receipts for expenditure.  This issue came up from another poster a few months ago.  One of the beneficiaries of a parent's Will had in that case taken it upon himself to speak and act for all the others but was acting to his own advantage only.

I have found this whole process a nightmare as the first shock was that my sibling could simply change solicitors and move the probate and conveyancing work without consultation with me and having my formal agreement......so I now do not understand what the term "Joint Executor" *means*.  

Subsequently it has been impossible to take the current solicitor's impartiality seriously.  I assumed my sibling would have established in advance what the fee was likely to be.  Repeated letters and e-mails to my sister elicited nothing so I approached the solicitor herself about this.  When I suggested to her (the solicitor) that the fee was very high her angry response was that I should appoint a solicitor to act for  _me_ whilst  _she_ would continue to act on my sister's behalf.  I then suggested to solicitor that she wasn't acting for EITHER my sister or myself but "for the estate" (settling my mother's business - not either mine or my sisters) and this produced a storm of crap that she "felt undermined" and that if I expressed any further lack of confidence in her she would not continue to work on my behalf but would continue the probate with my sister as client!!!

The Irish Law Society when approached at that stage (about 9 months ago?) suggested getting a solicitor to act for me to sort out the solicitor (I kid you not!).  As the amount of money involved is very small going down that route would have consumed a good portion of the legacy and in deference to my parents who had come by it with such difficulty I did not wish to do that, though by then my feelings towards my sister were seriously homicidal.

Friends in Dublin have just lost their second parent and there's a tribe of them and they are encountering all the same issues with the probate and sale of a property but given there is just myself and my sister the chaos, lack of communication and time (and cost!) this business has taken is incredible.

I'm not attacking solicitors (really, MOB!) but there is no clarity around the legality of what lay-people like myself think is the legal role of Executor, and whether solicitors work for "the estate" or for the individual family member who brings them the business.

Last time I posted on this subject someone offered an URL to a site which defined legal terms.  It's not so much the definition we're short of, but rather how these things are operationalised in the mess and greed of interpersonal relations.  What I'm needing some help with is what to DO as it really goes against the grain to concede and bear the financial consequences when I have been actively shut out of the process.

I have e-mailed the solicitor to the effect that my sister's claim for expenses is something my sister can take up at a later time if she chooses but that the solicitor's job was the probate and conveyancing and since my mother's Will was that the estate be divided equally between myself and sister, *that* is what she is retained to do......not to reward my sister's frankly disturbed behaviour and unreasonable expectation that I fund her arbitrary decisions.

The very sad aspect of this (and my recently-bereaved friends in Dublin say this also) is that all this This post will be deleted if not edited to remove bad language insinuates itself into the place of the mourning process and spoils the intentions of the deceased that those left behind benefit from and enjoy their gift.


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## zag (14 Nov 2004)

Marie,

Sorry to hear about the trouble you have been facing.

Here are a few of my (non-legal) views on the issue, in case they are of any help.  I'm not trying to defend either yourself or your sister, just giving my views as asked in your original post.

- the issue of being a joint executor needs as you say to be clarified.  As far as I know there are two concepts of joint - "joint and several" and "joint and equal".  Actually I may well have got the words well wrong on that one, but basically they mean that either the two parties a) are equal in the relationship or b) must act in agreement on all issues.  Think of a joint bank account - you can either have one signatory required or two.  If one signatory is required then the parties are equal and may happily sign cheques without reference to the other party.  If two signatories are required then the two must agree on the details when writing a cheque or else no cheque gets authorised.  I'm not sure where you could get clarification on this issue, but I think a few hundred € would be well spent on a visit to an Irish solicitor to get this issue clarified once and for all.  If it is the equivalent of one signatory then your sister was within her rights.  Not that this makes the outcome any more acceptable.  There may well be some organisation dealing with bereavement who can suggest specialised solicitors.  I know of a situation where two siblings were joint executors and one possibly wrote a few more cheques from the estate account than might have been expected.  I don't know the legal outcome, but I know it had a major adverse effect on the family for a long time.
- I presume the solicitor provided a breakdown of the €11,804 ?
- If your sister filed an expense record with the solicitor and you didn't then the solicitor can only included her figures.  I suggest you file details of your €10,000 as soon as possible, as these were incurred on a similar basis to your sisters.  If you remove yourself from this situation and think of yourself as sole executor for the estate of a friend in the US - you would have to fly there to sign things and sort some of the matters out.  I presume these costs (like those of the solicitor) are claimable against the estate before it is divided.
- Getting tenants in may *or may not* have reduced the costs.  Since you were both away from the country they may well have thrashed the place and done a runner.  There is no way to know whether these costs would have occured or whether they would be greater than the windows and standing charges.  I think both options were viable, but I don't think you can say with absolute confidence that your sisters option was categorically the wrong one and one that incurred avoidable expenses.
- your sister didn't clear her expenditure with you, but presumably you didn't clear yours with her either.  This doesn't alter the fact that the expenses were incurred 'on behalf of the estate'
- you talk of the solicitor deducting €"7,887.50 from the estate to my sister's benefit?", but in reality I don't think it is to your sisters benefit, unless you suspect that a bit of padding has gone on in the expense details.  Things like replacing the windows cost money and if your sister had to pay for that, then she would be entitled to claim the money back from the estate.  Just as you are entitled to claim your expenses back.  I have no idea whether the solicitor has any role in adjudicating over the validity of the expenses or not, but I guess they might.
- the solicitors response to your challenge in the most recent post seems a bit ambiguous - first she implies that she is acting for both of you (as 'the estate' ) but if you don't like it go get your own solicitor and then she suggests that she can unilaterally drop you as a client forcing you to get your own solicitor.  This obviously adds to the confusion.  If she is acting for *the estate* then surely she cannot simply stop taking instruction from one of the executors, and if she is acting for both of you as individuals then since when did she sign you up as a client, if you were happy with your mothers solicitor.
- the Law Societys response doesn't help instill any confidence in the ability of professional bodies to help individuals who are experiencing difficulties with their members.

I suggest that the best course of action (in my non-legal view) is to file your expenses (which may be too late, but I doubt it) with the solicitor, and if they are accepted then the net result is pretty much fair.  I have no idea whether the solicitors charges are high or low or how much work was involved, but *if* you assume that they are legitimate then what happens is that you now have the value of the estate, less the costs to the solicitor, less the costs to one executor, less the costs to the second executor - to be divided equally between the two benificiaries.  I think it is reasonable to assume that costs involved in administering the estate would be deducted before distributing the remainder.

In terms of how to deal with your sister, wlll that's another story entirely.  I really can't see how you two can make up in the short term, so I think the best thing would be to temporarily forget all about her and her actions.  In a few years (perhaps after an extended family funeral or other significant event) the events of the last 2 years may fade away and seem less worth worrying over.  This has happened in a similar situation I know of - huge row over parents estate, nobody talking to anybody else for years, absolute silence, meanwhile the 3rd generation people who had no part in the row were stuck in a position of not being supposed to talk to each other for no *good* reason other than that their respective parents were in a snot with each other, and eventually the people involved got around to the view that there is no point in holding a grudge against the remaining family member until they are both dead.

I presume in almost all estates there are decisions made which could significantly affect the value of the estate - selling shares a week before the stock reaches a record high, holding on to the house for a while believing the market will continue to appreciate when it suddenly takes a nose dive, selling a painting for €1,000 when in reality it is worth €15,000 but the executor isn't an art expert and doesn't realise the value, throwing out the sideboard which was hand made in 1750 but looked a bit scruffy.  What I'm trying too say is that I don't think that the art of being an executor for an estate is an exact science - you do your best and follow the will with your best efforts..  That's all you can do.

Hope some of the above helps.  Your story (and similar ones on AAM recently) have certainly highlighted the huge problems inherent in being a joint executor and should make people think about appointing (or being appointed) joint executors.

I know that some of this comes out looking like I am siding with your sister, but I am really just giving my views on the situations outlined.  In some instances your sister may have done something wrong, and in others you may just have perceived the wrong.

z


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## rainyday (14 Nov 2004)

Hi Marie - Sorry to hear of your difficult situation. I do think that you are possibly being a little bit hard on the solicitor.

Isn't your real complaint really with your sister, and the solicitor is just stuck in the middle of the family row?


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## Marie (14 Nov 2004)

Zag and Rainyday - My thanks to you both.  The points you make are helpful and bring this back to reality and though I thought/hoped I was finished with years of paperwork I will retrieve my own receipts and submit them as expenses and see what happens......though I honestly don't have much hope that what has felt like years of unreasonableness and muddle will change at this eleventh hour!

My mother appointed one of her sisters as Executrix.  Immediately after mother's death this Executrix formally bowed out of the responsibility on grounds of ill-health and the role automatically devolved to the beneficiaries (self and sister).  

It never occurred to me at the time to enquire if there was an option to suggest another (neutral) person to fill the role, or if the duties could be performed by my mother's solicitor.

I  _assumed_ from the way mother's solicitor went about things (requiring us to attend his office together to give a joint instruction regarding the estate) that this was an equal and co-operative enterprise (no-one verbalised that it was _not!_).  

I was astounded when sister _refused_ that meeting as I continued to believe we must meet and jointly plan and administer the dispersal of the estate.  Mother's solicitor wrote informing me he had been contacted by Solicitor Two who had been engaged by my sister to do the probate work. 

I contacted Solicitor Two as at that stage I did not know if she was (a) acting for my sister or (b) acting for the estate or (c) other.  She was very reassuring that she was acting for "us" and I would be included in every aspect of the process - unless I chose to engage another solicitor.  At this point I again felt confused but so confused that I didn't know what my question about all this was and just wanted the wretched probate finished and to get the hell out of there!

The original arrangement was that I buy out my sister's half-share in the family home in Dublin (she asked for E30,000 over the then-market price which I agreed to without haggling).  I secured a job in Dublin , put my home here up for sale.  Days before the mortgage was to be drawn down sister insisted the property be put on market as she wanted more money (the value of the property had just about reached the offer I had agreed to a year previously).

I myself secured a buyer (neighbour who wanted the large garden for its development potential) so the house was sold without estate agents etc. fees being incurred (through my initiative) but I feel very bereaved at the lose of a loved home which I was looking forward to returning to, and feel bitter at the time and energy wasted.

During the final eighteen months of my mother's life my sister took out over five thousand punts (E8,000?) from mother's bank accounts which inexplicably she had access to, despite the fact she did not have Power of Attorney or Enduring Power of Attorney.  Again, Solicitor Two accepts this unquestioningly.

I've just returned from walking my dog and a neighbour/acquaintance with whom I was talking about these legal issues, of which he has a lot of experience, said with  satisfaction that when his frail elderly mother dies he intends to administer her estate and has obtained Enduring Power of Attorney and his sister (whom he hates!) will just have to take whatever he gives her  as he has moved the money in such manner it's untraceable.

My friends in Dublin are experiencing the same struggles between different personalities and vested interests.

If everything is so arbitrary it is difficult to take legal documentation, legal prescription around probate and legally designated roles seriously as they don't appear to have any substance when the vultures start wheeling! What's the point of spending time energy and money making a clear unequivocal will when there appears to be no penalty for not executing it......or where the execution is steered to the benefit of the greediest or most vociferous beneficiary?

I wasn't having a go at solicitors or even this particular solicitor (though in my experience her powers of communication, organisation and knowledge of human nature are piss-poor!) but rather a disappointment with probate law, which on close acquaintance seems a bit of a sham and a shambles!


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## Marion (14 Nov 2004)

Marie

I would agree with zag. Root out your receipts. Did you pay for your flights with a credit card - if so you will have evidence. Ask the person who maintained the garden for a receipt for the total cost if you can't find the individaul receipts.Your expenses, once vouched, are (in my non-legal opinion) as valid as those of your sister.

Best of luck in sorting out the affairs.

Marion :hat


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## Marie (15 Nov 2004)

Marion, Zag and Rainy - Thanks again for your good sense and taking the time to help.  I feel less of a "victim" now I've assembled my receipts and will post them off tomorrow.  The painful process is nearly at an end and I can get on with my life.


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## zag (15 Nov 2004)

Marie - one last thing.  I would copy the receipts before sending them.  Just in case they manage to get misfiled . . .

z


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## Marie (15 Nov 2004)

Zag - given the performance so far I wouldn't be at all surprised.  I'll let you know how I get on!


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