I have an equal share in my deceased parents will. My father died 20 years ago and my mother shortly after.
My parents will states the family home should be sold and divided equally between all children, with the condition that one of my sisters could live in it until she either married, or was deceased.
This sister died in 2015 as did the oldest sibling. Both have been removed from the deeds/land registry.
Two of my siblings are executors of my parents will and they have had a falling out over various issues, one being a verbal agreement (with no consent from all shareholders) to sell the property to one of the siblings at a reduced fee. They have not been corresponding with each other since 2015 and the will has not been executed.
As it stands, half of the shareholders want it to be sold to one shareholder at the reduced market rate of 2015 and the other half want it to go on the open market to obtain the best current market price.
The house in Dublin has been vacant since 2015 and to the best of my knowledge is not insured.
Is there anything in the law that I can do to break the current stalemate and ensure that the will is fulfilled?
Ms BD, email
Families can be the best of friends or the most intractable of opponents, mostly because we can never fully walk away from them whatever we might feel like doing. Sure, you can refuse to talk to each other or meet at family occasions or elsewhere, but something like this – a family will – always conspires to force you to work with siblings and/or parents.
The position you find yourself in is, frankly, a mess. And unfortunately, it is not one of your making so you have little direct ability to determine its unravelling. And, of course, at a time of housing crisis, we have a perfectly good property that is being left vacant which seems a shame.
There are two issues here. The first is your contention that the executors have not carried out their function as required by law. But there is a second issue surrounding the taxation of the estate.
Executors, who accept their role – which they do by not specifically renouncing it – have legal obligations. Essentially, they are obliged to organise the affairs of the estate, making sure any debts are paid and that any assets are gathered. They also have an obligation in almost all cases to secure probate and, where there are anything other than very straightforward cases that will involve the services of a solicitor.
I don’t think this case is straightforward and had probate been sought, I am sure they would have indicated that a solicitor was required.
Legal challenge
Working off what you have given me, which obviously does not include precise dates, numbers of those inheriting and ages, you say your father died 20 years ago and your mother shortly afterward. That indicates around about 2005.
In general, an executor is expected to conclude the management of the affairs of the estate within a year. This is known as the executor’s year and, during this time, they are protected from legal challenge.
This 12-month window is not hard and fast. It depends on the complexity of the estate and those inheriting should think twice before challenging an executor in court: as long as they can show they have been working on the estate, they will normally be protected by the court.
But 2005 is an awful long time ago. You seem to indicate that probate has not yet been secured. If that is the case, the executors are certainly open to legal challenge. Even going back to your sister’s death, we are talking over six years which is an inordinate amount of time to put a house on the market.
You will need a solicitor to do this and it involves petitioning the probate office of the High Court for the removal of the existing executors and their replacement with someone else to oversee the orderly winding up of the estate. If the existing executors have not done their job and now are not even talking, you will have little option but to pursue this path as, otherwise, all of you and this property are in legal limbo.
The thing to be wary of is its impact on the estate. Generally the cost of a reasonable challenge to a will and the cost of an executor defending his/her/their conduct comes out of the estate. High Court actions are expensive and legal action may leave very little, if anything, to be distributed.
I would certainly start by getting a formal legal letter sent to the executors putting them on notice that their conduct is considered negligent or in breach of their duty. You can do this yourself by going to a solicitor but, possibly, it might be more effective if as many of those affected by this delay as possible are party to the letter.
Verbal agreement
I am even more concerned by this alleged “verbal agreement”. No executor has the power to overrule the provision of a will.
Your parents decided quite clearly what they wanted done: your sister to have right of residence, or a life interest in the property (which, by the way, had a tax implication for her) and for the property to be sold on her marriage or her death and the proceeds to be divided equally among you all.
No executor can arbitrarily decide to effectively defraud the beneficiaries by selling the property “on the cheap” to an interested party at a cost to the others of part of their inheritance. That in itself would be reason enough to challenge their continued execution of the estate.
And even if they could persuade all of you to accept such an arrangement - which looks a forlorn hope in this case – each of you would be assessed for capital acquisitions tax (inheritance tax) on the market value of the property, not on some diminished “discount” value to accommodate a family member. The fact that half of you think it is a good idea is irrelevant. And if the house is not sold, the Revenue Commissioners were order a professional valuation to determine what it should have fetched anyway...and charge the estate for the privilege.
Depending on your parent’s other assets, the value of the property and the number of you involved, there may or may not have been an obligation to file an inheritance tax return – and pay the tax owing – some time back after your parents died. If tax is outstanding, there will undoubtedly be penalties and interest.
And if you did nominally inherit a share in the home and it is to be handed over at a discount to the 2015 value, you also leave yourselves open to a capital gains tax assessment on the increase in the value of the home since then.
Insurance
Finally, on the issue of insurance, there is no obligation to insure a property as far as I know, unless it is carrying mortgage in which case the lender will require insurance as a condition of the loan.
However, it would be a reckless executor who would choose not to do so They have a legal obligation to protect the assets of the estate pending their distribution or sale. If anything were to happen the house and it was uninsured, the executors could also face a claim in that regard.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice
