Gary Rycroft: Article from This is Money

My sibling is refuses to sell the home we inherited – what can I do?

By Tanya Jefferies for Thisismoney.co.uk 25 January 2022

My parents both died in 2019. My brother and I are joint executors. We do not get on at all as he is an unreasonable person who wants total control.

Although we are both joint executors he refused to let me have any input into our parents’ funerals and went as far as to not invite me to my father’s wake then not advise me when our mother went into hospital and died, and not invite me to her funeral.

Last year, he failed to turn the water off and a ceiling collapsed in our parents’ home. He also failed to insure the property so it was not covered.

I did this as his solicitor had contacted mine saying he wanted me to take the lead role as he was ill. I had my solicitor write to state I was prepared to do so.

The moment I had viewings ready for the auction he phoned the agent and was very abusive telling them to remove it from sale as he would not agree the sale and would never allow me to have probate.

I have had probate granted in my sole name now since August, but my solicitor has told me I cannot go ahead and sell the property as my brother will still be required to agree.

My children are also beneficiaries though very small gifts (which I could settle personally).

What do I do about my solicitor who is not responding to my emails to move the estate along and have it settled.

The main part of the inheritance is the property which has been left jointly between my brother and I.

I am in my 60s and am currently selling my home to move to be closer to my children.

It would make sense for me to buy my brother out but I doubt he will agree. He currently lives off benefits which he will lose if he inherits money.

I have no income which he is aware off and I imagine that he feels powerful by trying to make my life financially difficult.

Can I move into my parents’ home and take possession as when I sell my property I will effectively have no home though I would be able to buy him out.

What can I do to remove my brother as an executor as I have asked my solicitor and he said that unreasonable behaviour is not enough to have him removed.

I feel am at stalemate and need this matter resolved as my partner was diagnosed in the last couple of years with a rare and incurable cancer so I do have other matters to deal with.

Tanya Jefferies, of This is Money, replies:

This is a dreadful position to be in with your only sibling after losing both your parents.

I really sympathise with you, and understand why you feel you have reached an impasse with your brother, your late parents’ estate and your current solicitor, especially at a time when you must be worried sick about your partner.

To sort through your options and hopefully help you find a way out of this, we asked an experienced lawyer to respond to you below.

Gary Rycroft, partner at law firm Joseph A Jones & Co, replies:

I am struck by how difficult this situation must be for you, especially as it has arisen from a double bereavement.

Your brother not involving you in the end of life care for your parents and later their funerals is truly awful for you and I am sorry you have had to endure all that, especially when your own partner is not well.

In terms of the current legal situation, the issue of magnetic importance and the factor that will allow you to make progress, is that you have obtained the Grant of Probate in your sole name.

I note you and your brother were both named as executors, but the fact he declined to take out the Grant of Probate and asked you to take the lead means his role has been side-lined.

When executors step aside they either ‘renounce’ which means they give up the role of executor entirely and may not revert or they ‘have power reserved’ which means they step aside, but can ask to step up again in the future.

From what you say, it sounds like your brother has had ‘power reserved’. I say this because your solicitor is of the view he still has some kind of standing you should take into account.

However, either way, whilst the Grant of Probate is in your sole name, you can in effect ‘call the shots’ and decide on how to deal with the assets in the estate.

To be clear any decisions you make must be fair to all the beneficiaries and not self-serving. Nevertheless you do have the legal authority to decide what to do next.

If the bank accounts have still to be closed, you should get on and do that and pay the closing balance into a separate executors account either held by your solicitor in their client account or in an account in your sole name, separate from your personal cash.

Any legacies not yet paid (such as to your children) should be paid.

As executor you have a legal duty to insure and maintain the house. You should fund this from cash in the estate, or if there is no available cash, pay yourself and keep a record so the estate can refund you.

A fundamental decision is whether to sell the house and split the proceeds between you and your brother or you move in and pay him out.

As sole executor named on the Grant of Probate you can decide. Your brother would only have just cause to complain if you did something unreasonable, or otherwise in your best interests and contrary to his.

o mitigate the risk of your brother having any valid complaint against you in your role as executor you should therefore be entirely transparent about what you wish to do and why.

This may be you telling him in writing (so there is a record) that you have to sell the house to pay off the liabilities of the estate and/or because it is deteriorating and you need to preserve the value of the estate as best you can by disposing of the wasting asset.

Or it may be you telling him in writing you wish to move in and buy him out at a fair price (say based on three separate valuations).

Crucially as the executor named on the Grant of Probate you may sign the legal documents to sell or transfer the house and his signature is not required.

I note your lawyer has said otherwise, but based on the facts you have given in your question, I disagree on that point.

Your duty is to keep your brother informed, take into account his wishes (if they are reasonable) and not do anything to cause the estate or him as beneficiary loss.

My view is that the most straightforward approach is to sell the house on the open market. That way the true value of it will be ascertained and achieved so the scope for arguing later you bought him out at an undervalue will be neutralised.

I note your brother has previously tried to disrupt the sale process by ringing the estate agents.

This behaviour is not justified and I would head it off by explaining to any estate agent you appoint that you are the sole executor named on the Grant of Probate (show them the document to verify this) and say only you have authority to give them instructions.

Estate agents are not shrinking violets and should rise to the challenge to ensure your brother does not upset the process and prevent them from getting their commission.

Your solicitor is correct that removing an executor is not a straightforward process, but in this case that appears to me to be an academic question as your brother has not taken out the Grant of Probate.

So, I would not waste energy and expense looking into that.

You seem to be frustrated by some of the advice your solicitor has given you.

It would be unprofessional of me to pass comment without seeing the full correspondence file, but certainly if the lawyer/client relationship is not working for you, politely terminating his or her services, paying the reasonable charges incurred up to date and seeking alternative legal advice strikes me as a sensible move. https://i.dailymail.co.uk/tim/2020/06/signup-300×250.html

For me the most perplexing aspect of this case is your brother’s motivation for being so difficult.

You mention he is on benefits and I surmise that is the key. I suspect he wants the estate to remain unadministered because once it is wound up, he will have to declare the capital he has inherited.

If you were able to communicate and co-operate there may be ways in which his fears here could be allayed by mutual agreement.

For instance, selling your parents’ house and your brother using his share to immediately buy somewhere for himself may preserve some of his income from benefits because in that case the balance of capital in his bank/building society accounts may not increase as much as he fears.

Yes he would lose his housing benefit but that saving to the state would not be a direct loss to him as he would still have a roof over his head and even better it would be a place he owned.

It may be unrealistic for me to think you and your brother will be able to collaborate and if so, I hope the rest of my answer makes clear that from a legal point of view, his ‘permission’ about how to best administer the estate is not required because you are the executor named on the Grant of Probate and as long as you fulfil that role with integrity you may proceed as you judge fit.