Probate and Empty Homes Finding the way through Kerry Morgan-Gould, Legal Director and Victoria Green, Associate - Ashfords LLP

Transcription

1 Probate and Empty Homes Finding the way through Kerry Morgan-Gould, Legal Director and Victoria Green, Associate - Ashfords LLP

2 Long Term Empties who is the owner? Registered land Office Copy Entries of the title can be obtained from the Land Registry Unregistered land make enquiries with neighbours, local solicitors or undertake searches of adjoining properties either copies of title, index map searches (SIM) and planning applications

3 Where are they now? Search of the register copy death certificate Application to Probate Registry for a copy of a grant Standing Search if death within last 6 months

4 Probate and Letters of Administration Both provide the legal authority to an individual(s) to deal with an estate Probate executors acting under a Will Letters of Administration administrator dealing with the estate under intestacy, or where appointed executors decline or are unable to act

5 Administering the Estate Search for a Will where? Search for the Executor or Next of Kin how do you trace them? Refer the Estate to the Treasury Solicitor or Farrers & Co for Duchy of Cornwall and Lancaster what do they need? Use status to apply for a Grant

6 PR s duties debts Personal representatives have a duty to pay the deceased s debts with reasonable due diligence having regard to the available assets; If a debt is secured on a property (e.g. council tax arrears secured by way of a charge), that property will bear the debt unless repayment of the mortgage is provided for elsewhere in the Will (Administration of Estates Act 1925, s.35); Personal representatives are personally liable for the deceased s debts (whether they had notice of them or not) where there are sufficient assets in the estate to meet those debts.

7 Missing or uncooperative PR s If there is no Will, there is a strict order of priority as to who may apply for a grant of probate. A person lower down the priority list can only apply if those higher up have died, renounced or refused to act; Creditors can only apply for a grant if there is no-one ranked in priority able and willing to act. Missing PR s can be problematic Take care with tracing agents who will pay the fee?

8 Procedure: Creditor s Grant First enter a Caveat against the estate; Then issue a Citation, formally clearing off any persons with prior entitlements to take the grant; Where there are no known kin, or where address is unknown, you must set out your efforts to trace them; Citation must be served personally on the citee (person to be cited.. E.g. person refusing to act) No fee, save for 10 settling fee (to approve citation wording prior to service) Citee, has 8 days following service to enter an Appearance confirming whether they will either accept or refuse to take out a grant

9 Creditor s Grant Cont If the party cited accepts and is willing to take out the Grant, he/she will need to file an appearance. The Court will then issue an order for them to take out the grant. If they subsequently delay, can make an expedited application for grant to you. If no appearance is entered you can apply for grant and administer estate. NB consider the costs/benefit of the action you are taking

10 Removal of PR s Pre-Grant and Post Grant PR s can be removed by section 50 Administration of Justice Act 1985; The test: Executors should be removed if it is in the interests of the due administration of the estate. The overriding considerations are the welfare of the beneficiaries and whether the estate is being properly administered.

11 Removal of PR s PROCEDURE Applications must be brought in the High Court; All applications will be assigned to the Chancery Division; Every PR shall be joined as a party; Under a Part 8 Claim Form; Can be expensive Courts are generally reluctant to remove PR s but do have a wide discretion. In essence each case turns on its facts.

12 Debt claims against an estate If PR s have taken out a Grant, yet are refusing to acknowledge legitimate debt, you can commence proceedings against the estate;

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