For the attention of Themas

[Valrie]

Sorry to bother you again Themas. Just a few queries. Firstly am I entitled to a copy of my ex husbands will as I am the parent/legal guardian of our son who the will affects? The executor said her solicitor said I can see it but don't need a copy - I have not seen it as yet. Secondly does the executor have to give me a set of keys to the house as it is full of mine and my son's possessions and I need to sort it all out, put things in a skip, give things to charity etc. prior to giving the keys back to the Abbey National. Thirdly and lastly the original question I posed was about an interim charging order against the property. I have rang the court, explained that my ex has died and they have asked for a copy of the death certificate asap as the hearing is on 26th July. I have asked the girlfriend/executor for a copy of it and she said she has none spare and despite me offering to get it copied and get it straight back to her she will not give me a copy. She cannot find my ex's copy of the charging order and the one I have is addressed to me. Am I in the right dealing withthis side of it or shouldshe be as the executor?

[dzug]

You are not entitled to a copy of the will until after it has gone to probate - when you can buy a copy from the Probate Office. However if the executor is prepared to give you a copy there is no problem with her doing so.

I would doubt if the executor has to give you a set of keys - but she must arrange access for you to remove your property somehow.

Sorry, can't answer the charging order query

[Valrie]

Hi Dzug. I was under the impression that the executor has to provide all beneficiaries with a copy of the will - my son is a a beneficiary. The executor is not applying for probate as she has been told by the solicitor who drew up the will that it will cost between �750 - �1000 - money we do not have.

[Valrie]

Dzug another point is that I own half of the property - she has been left half of my ex husbands half and my son has been left the other half. I am entitled to access to my property I would have thought?

[dzug]

I don't think that the executor has to provide a copy of the will to beneficiaries until it has been proven - a lot seem very cagey about this though there is really no reason not to give one out upfront.

If it's not going to be proven then I would have said you are entitled to a copy. I suspect it doesn't HAVE to be done until the estate is distributed, I might be wrong about this though.

And if you own half the property - then yes you are entitled to access. To have and retain a set of keys.

Is the house going to be sold? I'd be very surprised if that can be done without probate - either now in in n year's time when things will get far more complicated. Banks will give out small sums of money without probate but for a large asset such as a house.....

[Valrie]

Hi Dzug. Thanks for your response - much appreciated.

I am a bit puzzled as to how she was going to manage the estate, whether it has any assets or not, without applying for probate. I am basically wanting a copy of the will as I am the mother of our 12 year old son and want to make sure that he gets anything he is entitled to.

Because she said she will not be applying for probate we will not be able to sell the house ourselves and it will therefore have to go back to the Abbey National for them to sell and then if there are still any outstanding debts they will have to be pad, I presume, by me and her as she now owns a quarter of the property and therefore a quarter of any debts.

[dzug]

As executor she is duty bound to do the best for the estate as a whole, not just herself.

If the house is effectively sold as a repossession, it will fetch less than on the open market, and she is failing in her duty as executor.

You can (in theory anyway) therefore sue her for the difference - or at least your share of it.

But I can't see how Abbey National will pay out any residue (on your ex's share) without probate anyway. Maybe there isn't going to be any?

[Valrie]

He has left a complete mess so I doubt very much there is going to be anything left apart from debts which she will be liable for as well as me. He took out another loan with Welcome in September last year on the house and did not obtain my signature - I am therefore going in to see them to dispute the fact that they can now claim for this loan as it was not obtained legally. I have spoken to a solicitor and apparently as executor she must provide copies of the will to all beneficiaries and they have suggested I speak with the solicitor who holds the will and get a copy from them direct. My e-mail is [email protected] if it is easier to use that. Thanks.

[themas]

1. As Dzug says, the normal procedure is that executors do not HAVE to provide a copy of the will until after probate, but in practice this is pretty absurd & I hope you can now get a copy via the solicitor.

2. Yes, you must have keys and access to the house.

3. The executor is being totally unreasonable in not providing a copy of the death certificate for the Court. Explain to her that not doing so will make things more difficult for her as it is then likely the charging order will be made final because the Court won't have proof of the death. She will then have to sort this out later, and possibly incur more costs doing so, as well as a lot of hassle.

4. I think from your original query that the interim charging order has been made in just your husband's name, & that your copy has been sent for information as a part owner. If this is the case, it is really the executor's responsibility to sort it out so she should send the death certificate to the Court herself. However, you obviously have an interest in the house so it is worth trying to persuade her to do what is necessary. If the interim order is in your name as well as his then the loan was fraudulent - as we said before - & it certainly can't be enforced against your share of the house. You may have a problem with Welcome about this (I think they are sometimes anything but what their name says!) but need to be firm & not give way.

[themas]

Also, Dzug makes a good point about Abbey not paying out any money after the sale without probate. But if you & the executor are certain that - after Abbey & the other secured creditors have been paid - there will be nothing in your ex's share of the house it probably doesn't matter. I assume in saying this that there are no other assets anywhere so probate would not be needed for anything unrelated to the house.

[Valrie]

Thanks Themas. As far as I am aware there are no other assets but this is why I would like to see the will.

Spoke to the solicitor who said he can't give me a copy of the will but has advised the executor that she should give me a copy - she said that this is not the case. She is now going to get me a copy.

I am going to the registry office tomorrow for a copy of the death certificate and will be taking it into Welcome when I go see them about the loan taken out by my ex on 26.09.06 which I know absolutely nothing about. I will not be held liable for something I never signed for and cannot understand how they have loaned him more money when he had no income and I was not there to sign any paperwork.

I am going to tell her I want probate to be applied for so we can try and sell the property ourselves - which would hopefully give us more profit.

Hope you don't mind but this will probably be an ongoing saga so will post again fro your attention. Many thanks for your time - much appreciated.

[themas]

1. The will won't necessarily tell you about other assets but, as Dzug said, the executor is responsible for dealing with the estate for the benefit of all beneficiaries.

2. Be firm & definite with Welcome. Keep a note of the name of anyone you see or speak to on the phone, & details of what was said, & the date & time. This would be useful if you had to get into a complaint process with them. If they maintain this is a joint loan then insist they produce the original agreement & compare your signature on it (which will be a forgery) with your proper one. If they still say it was signed by you, then a hand writing expert will have to examine it.

3. I agree with you - probate should be obtained. If the estate is simple & the house the only asset then it should not cost anything like the solicitor's quote. It would even be possible for the executor to do it herself, perhaps with some guidance from the local CAB or other free advice agency. The most difficult bit is the tax form for inheritance tax but as it appears the estate (after debts are paid) is going to be well under the IHT limit of �300,000 this should not be too problematic.

4. If you do go down the probate route & selling yourself, you will need to make sure Abbey & the other secured lenders know what is happening so as to minimise the risk of a premature repossession. They won't wait all that long if the mortgage is not being paid, so getting probate is urgent.

Please go on posting if you need more advice.

[Valrie]

Thanks Themas. The signature was not mine and the man I saw could clearly see from my passport and my bank cards that it was not. He also could not produce the evidence which is needed when a person signs their documentation. What he said had been done was that my ex had restructured the loan - no money was given to him in September. I said that this was irrelevant as they had increased the value of the loan by extending the terms and this obvious required my signature - this was not my signature. He said that they would normally get the police involved and I said that I would gladly do this. He said he would let me know if he needed me to or not. I was wondering whether it would be worth letting the police know anyway? I have gotten to the bottom of the Interim Charging Order - it is a company called Duncton who are a car loan company and the other companies where named as they have a charge against the property already. I have sent the a death certificate do they can stop the court case going ahead on 26th July - they won't be able to put it against the property now will they? Sorry about the questions. You will be glad to hear I am away for 10 days from tomorrow evening but will be logging on from my friends - taking my son away for a break.

[themas]

It sounds as though it was fraud but as it was presumably by your ex, I don't see what can be done about it now. But it would do no harm to inform the police & tell them what Welcome said. Make sure they record it & get a crime number if you can. Then tell Welcome what you have done. Have Welcome confirmed they will not pursue this debt against your half of the house? They must do this in writing.

As far as Duncton are concerned, have you sent the death certificate to the Court, or to Duncton? If not to the Court, send it to them as well - by recorded delivery. Don't rely on Duncton sending it on. The interim order is sufficient to delay or prevent sale of the house so what you really want is for the charging order absolute to be refused. The debt is not then able to be placed against the house. However, I don't know whether that is what the Court will do - they may just adjourn the hearing until the executor can become involved - but hopefully they will say Duncton has to start afresh with issue of a new interim order application. Ask the Court what the procedure is. Even if they do have to start again it won't delay the interim order for long if Duncton are able to issue one against the estate (i.e. the executor).

Hope you have a good break and the weather is kind.