Do i need a solictor

faolteam · 07-09-2023 12:44pm #1

My father passed away last week and left a will, I presume i do have to take out Letter of Administration and the probate so that the Will can be verified as valid and All legal, financial and tax matters are in order.

this is a brief wording off the will :

I appoint my son ???and son ???? Executors off the will and i appoint my five children as Trustees and i appoint them to be Trustees for the Purpose of the Settled land Acts 1882 TO 1890.

I Give devise bequeath all my real and personal estate whatsoever and wheresovever not hereby any codicil hereto otherwise specifically disposed of after payment pf my debts, funeral and testamentary expenses unto my five children in equal shares provided that my dwelling house shall not be sold or otherwise disposed of unless each and all aforesaid children of theirs as may be living at the date of my death.

As above the house at present has two children living in it and will not be sold at present, i wasnt sure what we have to do about probate , or if the Names have to be put on the title deeds if this had to be done,

What sort of a time process is involved, i have the Will does this have to be read or as executors can we read this to the other siblings, or is this better now to get a solicitor

Calahonda52 · 07-09-2023 12:57pm

I Give devise bequeath all my real and personal estate whatsoever and wheresovever not hereby any codicil hereto otherwise specifically disposed of after payment pf my debts, funeral and testamentary expenses unto my five children in equal shares provided that my dwelling house shall not be sold or otherwise disposed of unless each and all aforesaid children of theirs as may be living at the date of my death.

Is that the clause as it reads in the will?

Re your question ,yes you do need a solicitor, not just an average one but one who knows their stuff about the Settled land Acts 1882 TO 1890 so I would be asking them first how many of these type of wills have they done

faolteam · 07-09-2023 1:02pm

yes prety much obviously i didnt name them, he didnt want house sold unless all 5 children agreed , i suppose there a very close family

tom traubert · 07-09-2023 2:16pm

@faolteam - Firstly, condolences on your loss. Secondly, I'd advise that you give yourself some time and space, and be happy that your head is in the right place for dealing with this.

The extract from the will that you copied above is very unclear and to be honest I would hope that's a transcribing error or issue on your part.

Regarding whether or not you need to appoint a solicitor, you most likely do, but again I wouldn't be rushing in to it. Perhaps an initial appointment with a solicitor to assist you in interpreting the will would be a good starting point.

I post as someone who has administered one parent's estate without having to extract probate, and acted as executor in the second instance. Because of the simplicity of the wills, and the estates, in both cases I was able to do so without engaging a solicitor until it came to selling a property.

Finally, I am not a legal professional.

suvigirl · 07-09-2023 3:21pm

Condolences on your loss OP.

I would think yes, definitely see a solicitor, as far as I know the land and conveyancing reform act 2009, made big changes to things like trusts and trustees and life interests etc.

find one who has expert knowledge.

Calahonda52 · 07-09-2023 9:23pm

https://www.boards.ie/discussion/comment/121080283#Comment_121080283

That's not what I read into the extract

https://www.boards.ie/discussion/comment/121081109#Comment_121081109

re land and conveyancing reform act 2009: you are 100% on the money

Peregrinus · 08-09-2023 1:25am

https://www.boards.ie/discussion/comment/121080283#Comment_121080283

The word "agree" doesn't appear in the sentence that you posted. The sentence seems to be incomplete; as it stands it makes no sense.

Check again. Are you quite sure you have transcribed it correctly?

RobbingBandit · 08-09-2023 3:14am

Stating or even intending for a will to be conducted or followed by any laws that have been ammended or reformed leaves the will open to being contested, definitely speak with a solicitor asap maybe contact citizens information in your local area too for some advice, condolences on the death of your father, good luck dealing with this situation.

faolteam · 09-09-2023 1:49am

Ok folks i may have typed this in a rush this is it updated :

I appoint my son Fred and son Peter to be Executors off the will and i appoint my five children the aforesaid Fred and Peter , Carol , Olivia, and Noel as Trustees and i appoint them to be Trustees for the Purpose of the Settled land Acts 1882 TO 1890.

I Give devise bequeath all my real and personal estate whatsoever and wheresovever not hereby any codicil hereto otherwise specifically disposed of after payment of my debts, funeral and testamentary expenses unto my five children in equal shares provided that my dwelling house shall not be sold or otherwise disposed of unless each and all aforesaid children shall be in agreement.

In the event of any of my children being deceased prior to my Death then i DIRECT that My Trustees shall hold there share in Trust for such Children of theirs as may be living at the date of my Death.

Ps thanks for advice so far.

suvigirl · 09-09-2023 12:15pm

Definitely see a solicitor, as said earlier the land and conveyancing reform act changed everything to do with trustees etc,

left_hander · 09-09-2023 12:32pm

See a solicitor. If one of you dropped dead tomorrow, then the estate is still divided 5 ways because he forgot to include the word "surviving". Am I reading it wrong that the house should be retained as long as you or any of your siblings or their children are living in it?

Was the above a home-made will?

faolteam · 09-09-2023 1:28pm

https://www.boards.ie/discussion/comment/121088904#Comment_121088904

TWo of the people living in the house dont have siblings or married , i think its unless all 5 agree to sell it , was done by a solictor

tom traubert · 09-09-2023 3:36pm

I would respectfully suggest that speak with a solicitor other than the one who drafted the will at this stage. Further, I'd suggest that in advance of an initial appointment with a solicitor that you write out a list of the questions you have about the will.

Also remember that shopping around for legal services is perfectly normal.

Oscar_Madison · 09-09-2023 3:43pm

If feasible (ie all siblings get on with each other) see what sort of agreement there is amongst you from the outset - ie are ye all happy right now to sell the house and divide the proceeds? It might help matters at a later date if there’s issues with the wording of the will

faolteam · 09-09-2023 5:46pm

yes we had a good meeting today we are a very close family and amazingly most people wanted the will respected certainly at this stage and in fairness questions obvioisly had to be asked, it was 4-1 marajority in not selling the house, at this time, the person who wanted to sell felt bad then but it has to be said .

the first hurdle was the credit union no nominated person that didnt help even though someone could withdraw money for him ,

a few of the people would not be so well of and were wondering about this been an asset ( if not been selling ) and how it would effect there welfare payments

and do the siblings who have family need to write a will,

in fairness the father has had two solictors before this one we are going to go to now one seemd to dissapear around a lot working for different firms never get back to you and the other got jail so not been a good legal time i guess

hardest part of all this is probably finding the right legal Solicitor or firm

left_hander · 10-09-2023 9:18am

https://www.boards.ie/discussion/comment/121089990#Comment_121089990

Everything is screaming "see a solicitor". It is unbelievable that a practicing solicitor would not mention that the assets be divided between the surviving members of the family.

It is also very loose that a will be worded "only sell if everybody agrees". It reads above and maybe it is my reading but it reads like the 5 siblings and any children of theirs want to live there before it is sold.

I'd be going to see a solicitor and one who specialises in probate (not just a jack of all trades) to get proper advice. They will advise on all aspects of welfare payments implications of what you do, etc. I don't fully know the ins and outs of it but if the house isn't sold until you are old enough to require nursing home care I think there could be Fair Deal implications.

The few grand you spend on a solicitor now will be money well spent. Don't be afraid to have an initial call with a solicitor, they will give you 15-20-30 minutes before you instruct them and the meter starts.

The lesson for everybody is never write a will in such a way as to require family agreements after your death - it is a sure-fire way to a family feud. A very close family can be pulled apart over something like this.

Princess Calla · 10-09-2023 9:49am

https://www.boards.ie/discussion/comment/121091620#Comment_121091620

To be fair my parents will is fairly similar.

House divided equally between us. If anyone was living in the house they couldn't be evicted ....with the stipulation no one could move back home or move a partner in.....I was the youngest and still living at home and they wanted to ensure I had a roof over my head......needless to say there was a massive sigh of relief when I moved out from my siblings though none of them would admit to it.

It is a sticky situation parents just want to look after their kids. However while a 20/25% share in a property is a lovely bonus if you already have a house.... it's not great if potentially you're going to be evicted as you're not earning enough to get a mortgage despite having a deposit, so facing renting which will just eat into the inheritance.

Equally you don't want a situation where siblings are sitting pretty in the family home well into their 30/40/50's refusing to sell the asset and other siblings just have to "suck it up".

Leg End Reject · 10-09-2023 9:57am

In a scenario like this would all the siblings, as equal owners, be liable for ongoing maintenance, LPT, home insurance etc?

Would the siblings remaining in the home be liable for tax, as it is a benefit in kind of sorts?

torrevieja · 10-09-2023 2:33pm

Just a hunch here ,What if the people who are living in the house or the not so well off that are on welfare say, would it be better for the Deeds to be made in other peoples name or the people who are in the house and then they make a will leaving the house to the other people who are not on the deeeds or am i going off the track here

FazyLucker · 10-09-2023 6:11pm

Sorry for your loss OP.

Interesting albeit crazy to write a will that way, competence of the solicitor who wrote that is questionable if they couldn't foresee an issue a mile away writing a will like that.

https://www.boards.ie/discussion/comment/121091681#Comment_121091681

The last line is the key - if things got spicy between siblings (and even the most reasonable siblings can become unreasonable when money and power, etc involved), nothing to stop the "sitting tenant" so to speak saying well F the lot of you I'll live here for the rest of my days and you can suck it up. There is no way they can remove them as far as I understand.

To be fair, unless the house is worthless in any case it would seem logical that the house be sold and everybody gets their 1/5th of the proceeds. Unless the house is some family heirloom. The will can't really be administered until those in the house agree to move out or sell it, and as somebody above said the lack of a "surviving" children can mean an in-law who was never intended to benefit from his estate could do in the event of the death of one of the children (which given how long before the house could be sold if those living in it became difficult or un-cooperative, is a situation which could happen).

If its the family home, its best to write will which sells it and everybody gets their 1/5th bar there is some enormous emotional attachment. Nothing to stop those living there buying the others out and tax wise I believe this would be efficient as it is their principal private residence although it would need to be worth serious money before that becomes an issue. I know the banks don't look favourably on inheritance as deposits but even still, it'd be a lovely chunk of a deposit assuming buying a similar property and those living there should have been in a position to save something to prove to a bank they can repay a mortgage. The "I'd spend a fortune renting" argument is lame for anybody in this situation unless they are just finished college and earning small money.

It costs a few hundred quid to get a will written properly, it can cost half an estate to get the legalities of a mess sorted out. Its beyond me why people get their wills written by solicitors who don't have a clue what they are at.

See a specialist probate solicitor OP. You'll get better advice than us! Sadly, he would have been better letting the Succession Act deal with his estate than writing a will like that.

holliehobbie · 10-09-2023 7:41pm

I have come across a scenario at work where the sibling who was in the house eventually had to move out so it could be sold. This was after at least two court cases!! Such a waste of time and money.

torrevieja · 10-09-2023 11:40pm

The property cannot be sold unless all 5 children are in agreement.

You should apply for probate and once the Grant issues, you can assent the property into the 5 names.

Peregrinus · 11-09-2023 2:32am

I think the OP needs a solicitor.

The will doesn't seem to be very well thought-through. Others in this thread blame the solicitor who (is presumed to have) drafted it. But it could in fact be that the testator was just pig-headed about what he wanted in his will, and insisted even when it was pointed out that it was a bad idea. Testators are entitled to make unwise wills.

The general intention seems to be this:

The house is left to the five children equally.
If any child predeceases the testator, that child's share is to go to his or her children equally. Others in the thread seem to be suggesting that this is a mistake, but in fact a provision of this kind is very common. In the event it doesn't matter, since all five children survived the testator.
The testator does not want the house sold unless all the children agree. There is no suggestion that this provision also descends to grandchildren so, hypothetically, if one child had died his share would pass to his children, but they would have no veto over sale; the will only requires the agreement of the four surviving children to any sale.

OK. In general, executors have a power of sale and what would normally happen when a house is left to five adult children is that the executors would sell the house and pay the sale proceeds to the five children. The only exception would be where all five children agreed that they wanted the house transferred to them, which would be unusual.

In this case, the executors can't sell unless all five children agree. But they can, and arguably should, transfer the house to the five children, so that they become co-owners in equal shares. That will complete the administration of the estate and take the executors out of the picture.

This give rise to an interesting question. Does the provision in the will about not selling operate simply as a restraint on the executors' power of sale, or is it a restriction which descends with the property and continues to bind the children even when they are its registered owners? The will is not clear about this.

If it doesn't descend with the property, and the five children are co-owners in equal shares, then the general law would be that they need to agree about the use and management of the property, including about its sale. So they couldn't take, say, a 3-2 vote in favour of sale. But if co-owners can't agree about a property, any of them can head off to court and ask the court to rule how the property should be used, managed, etc. In particular, they can seek an order of sale — the court can order the property to be sold and the proceeds divided. And in fact this is commonly how irreconcilable disputes over property are resolved. As a matter of public policy, it is bad to have property tied by disagreements between the owners - the property deteriorates and value is destroyed. If relations between co-owners are so bad that they end up in court, nine times out of ten the court will order the property to be sold.

Even if the house is not sold — and, for the time being, there is agreement not to sell it — difficult questions arise about how it should be managed in the meantime. Two of the five children are living in the house. They are getting the (I assume) free use of property, 60% of which belongs to other people. If they want exclusive possession of the house, fairness might suggest that they should pay 60% of the market rent, to be divided between the three children who own the house but cannot use it or realise its value by selling it. There'll also need to be an agreement about who bears the cost of maintaining the house, and to what standard it is to be maintained. A recurring problem in situations like this, where people live in a house that they do not own, or that they only have a minority stake in, is that they are not motivated to maintain and invest in the house, so the house deteriorates. The five children should try to agree how this problem will be managed before the house deteriorates rather than after it has happened.

faolteam · 11-09-2023 3:13pm

https://www.boards.ie/discussion/comment/121095340#Comment_121095340

Well thanks very much Peregrinus for this information, extremley helpful , just a few updates on this , i have been in touch with a Solicitor who im hoping to meet later next week, I should also say i dont think i mentioned it was that two of the siblings do not have any children and would be in there late 50's

I would be one of the siblings living at home and mentioned as an Executor with another sibling who does have kids and is not living at home,

""Does the provision in the will about not selling operate simply as a restraint on the executors' power of sale, or is it a restriction which descends with the property and continues to bind the children even when they are its registered owners? The will is not clear about this."" :::

I suppose to make a will you have to have executors and i would say at the time he certainly would have put my name forward as i suppose i would have paid her bills , maintenance etc and just mentioned the other sibling that came into his head at that time, Dad had a will but was never happy with the idea of the house been sold and his siblings put out on street two would not have been too well off and one of them health wise was not so great, this is probably been the reason why the will was changed later and i do believe that the he would have wanted all children to agree on the out come executors or not , it really would have been a Children decision

left_hander · 14-09-2023 9:41am

https://www.boards.ie/discussion/comment/121095340#Comment_121095340

You are right that solicitors can't advise people against bad wills. I don't know if a good solicitor would have a record to say they advised against what the client wanted to do?

But on the topic, if one of the 5 children dies, the house will (assuming they are married) be owned by 4 x siblings and a brother/sister in-law, not their children? I like my in-laws but I would HATE to own a property with them because that could totally change an already potentially powder-keg dynamic which could develop here.

If this ends up in court, the only winner will be the legal profession unless the house is worth an arm and a leg.

OP - if your talking about a worthless house in the middle of nowhere, I'd be inclined to say the 3 of you would be best off cutting your losses. Let them live there and sell it when the inevitable happens.

I get what you say about the siblings being in their 50's but that still means it could be 40 years before a sale could be managed.

If you could get an agreement, your best bet here is to try get your 4 siblings to agree to sell the house and take your 20% each. Its still a decent chunk towards buying a new house for those living there, and the 2 x siblings living there could buy a house together if so inclined in which case they'd have 40% of the proceeds of the house.

It is admirable that your father wanted to look after his children (natural instinct as a parent) but the best way to look after your children is to ensure you don't leave a situation where your children can fall out over the proceeds of your estate! Of course I don't know your situation and (I really hope) maybe this situation is unlikely but I think you'd need to see if the 2 living there are open to selling. If they are, I'd be doing that as quick as you can if they agree.

Peregrinus · 14-09-2023 9:51am

As matter stand, the house is jointly owned by the five siblings. The bit in the Will about a deceased sibling's children taking their share only applied if the sibling was already deceased when the father died. This did not happen, so we can ignore it.

What happens if one of the siblings dies now, after they have inherited a share in the house? Their share of the house will form part of their estate, and who it goes to will depend on whether they made a will, what that will says, and what their personal circumstances are. If the sibling is married and is survived by a spouse, the likelihood is that their share will go to their spouse. If there's no surviving spouse but there are surviving children, the likelihood is that their share will go to the children. If there's no surviving spouse or children, then the likelihood is that their share will go to their nearest relatives, who may well be the other four siblings — i.e. each of their 20% shares will be enlarged into a 25% share.

But nothing is certain, because any sibling could make a will disposing of their share in the property in some other way.

left_hander · 14-09-2023 3:25pm

https://www.boards.ie/discussion/comment/121107911#Comment_121107911

Yes, sorry I was making that assumption that the sibling would most likely have a will leaving everything to their spouse. You are right it might not be so, but it probably would be.

Peregrinus · 15-09-2023 1:27am

https://www.boards.ie/discussion/comment/121109451#Comment_121109451

It probably would, provided the sibling dies before their spouse. But only about half of married people die before their spouses. (Think about it!)

left_hander · 15-09-2023 9:05am

https://www.boards.ie/discussion/comment/121111677#Comment_121111677

Over thinking it territory now!

If the siblings in their 40's and 50's then you'd hope for the OP's sake this will all be sorted before it becomes an issue! :D

Peregrinus · 15-09-2023 9:37am

Whatever about the legalities of the situation, it seems that your father didn't want the house sold from under the two siblings who are currently living there. And, whether out of respect for your father's wishes or out of care for the two who are living there or a bit of both, there is general agreement among the siblings that the house won't be sold yet. (One would like it sold but accepts that they are in the minority.)

If everybody puts this in the "too hard" basket, it has the potential to fester and become a running sore that will cause family dissension. People who are happy not to sell for the time being may not be happy not to sell for what might be decades. In time they'll have their own financial needs - a need to extend their house to accommodate a growing family, college costs for their own children, helping them with a deposit, whatever - and they won't want to see a chunk of their own wealth tied up in a property that others get benefit from but they do not. And if the people currently living in the house are allowed to think (or hope, or assume) that they can live their indefinitely, this is the kind of thing that can tear families apart. You don't want that to happen.

So you need to have conversations about what might be a stable long-term arrangement (e.g. the two resident siblings pay 60% market rent to the three non-resident siblings) or alternatively about a medium term exit arrangement so that the house can be sold. We don't know — any you may not want to discuss here - why two (presumably adult) siblings are still living at home, and what prevents them moving out. What would have to change in their circumstances to enable them to live independently and at their own expense, and what can be done to advance that change? These are easier questions to ask than to answer, especially when you're looking for an answer that is fair to everyone and that has some chance of getting everyone to buy into it. But I think these are the kind of conversations that you need to begin among the five of you.

(To be honest, I'm not sure that your father did you any favours with this arrangement.)

faolteam · 15-09-2023 3:04pm

Thanks folks, well seeing a solicitor Friday week,

Seems now if the house is not been sold which pretty much looks like it’s not,

Probate now seems it’s going to cost 5000+ Including all of us making a will which is important, at present the two remaining without children are leaving their share at present to remaining siblings children which I’m thinking that it’s made to direct sibling

and that the house not sold but I suppose the legal part will be sorted,

Main beneficiaries as it stand will be when there is nobody living in the house it’s sold and the main siblings children inherit it

Do i need a solictor

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