My mother died in February. The will names myself and my brother as executors. We have the original will.
Can either one or the other apply for probate? My sibling lived in the house with mum rent free for over 10 years and is still there. The property is up for sale. He has all bank accounts and his girlfriend is currently living there also.
Ms M.A., email
I’ve mentioned it before and will do so again. There are very good reasons for a person to include their legal adviser as one of the executors in any will they draw up.
Wills and inheritance are a very emotional subject, as the postbag response to recent queries on this issue demonstrates. Not only can long suppressed rivalries and differences of approach surface without the unifying presence of a parent or other relative, emotions are also raw as people grieve.
Especially in situations open to confusion – such as where one family member lived with the deceased to the end or where they have control of bank accounts or other assets for practical or other reasons – the advantage of an “outsider” who can assess matters with a dispassionate eye is a plus.
Solicitors bring the added advantages of legal training and consequent comfort with what can be for many intimidating legal processes as well as lack of personal interest in the estate. Most will have witnessed their clients’ will and cannot therefore benefit from it.
But you are where you are, and the executors in this case are the two of you.
According to the Succession Act, which covers the whole area of inheritance and probate, any one of two or more executors can apply to prove the will – which is what you do to secure a grant of probate before distributing any assets – or they can do so jointly. So there is nothing to stop you proceeding independently. Bear in mind that means also that there is nothing to prevent your brother applying for a grant of probate without you.
Having said that, can I really urge caution here.
It is clear you are not fully happy with affairs as they stand. Your brother is in situ and he appears to have control of all of your mother’s bank accounts. His girlfriend has also moved into the home he shared with your mother.
I think you need to ask yourself a few questions:
– Is it really that unreasonable that your brother’s girlfriend would move in with him in the circumstances while the house is being sold (a point I’ll return to)?;
– Is there not a perfectly reasonable explanation for why your brother has control of bank accounts that might otherwise have been frozen pending probate – such as the restrictions imposed on non-family units by the Covid-19 lockdown?
I’m not saying that the answer to either of these questions will be “yes”, but we sometimes get ourselves stuck in a single track of thought without considering other, less suspicious interpretations. Looking at alternative interpretations can sometimes help clarify issues one way or the other.
Bear in mind also that we are talking here about fallout from the death of your mum less than four months ago – and that for most of the intervening period we have been stuck in some form of lockdown. Unless there are other behaviours or factors causing concern – such as dissolution of assets – you should be careful about pursuing a course of action that could trigger both family schism and (potentially costly) legal challenge.
On the issue of things that cause concern, it may have made sense for your brother’s name to be on your mother’s accounts both when she was alive (to allow him fund purchases for her if she was less able to get out and about on her own account) and after she died (to ensure domestic bills continue to be paid), but there is a strong argument that your name should now be added to the accounts so that you can manage them as joint executors.
Also, you say the family home is on the market. How did that happen ahead of probate and who is managing that process?
It is possible in certain circumstances for assets such as the family home to be put up for sale ahead of probate though it is definitely unusual. My understanding is that such a sale could not be completed until probate is granted so you run the risk of losing potential buyers by having it on the market before probate is even sought.
Also, if your brother is living in the property, and may be stuck for somewhere to move – at least in the short term – he has a potential conflict of interest in its sale. You mention he was living in the property rent free over the past decade. It would be important that you are actively involved in any sale process to ensure it is open and transparent.
The bottom line here is to be aware of two things.
Probate is a legal process and not something that can simply be short-circuited to suit particular family circumstances. Doing so could create significant legal issues and bills for both of you – and any other beneficiaries.
Second, never underestimate the capacity of inheritance issues to tear families apart. Tread carefully, but maybe get some professional legal advice for your own peace of mind. It would be money well spent.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice. No personal correspondence will be entered into.
