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Dissenting beneficiary.

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Dissenting beneficiary.

Postby Hairyloon » Thu Dec 27, 2012 12:08 pm

This may no longer be a probate question, but this is probably as good a place as any to start.

Chap dies and leaves his house to his offspring. As is normal in these situations, the house is put on the market to split the proceeds.
A problem comes up preventing the sale, and the house is not sold.
A few years pass (this is why I think it is no longer a probate question) and nothing happens, largely due to indecision and lack of communication.

Does a decision need to be unanimous, or can it go with a simple majority?
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Re: Dissenting beneficiary.

Postby atticus » Thu Dec 27, 2012 12:12 pm

The executors/administrators appear to be failing in their duties, unless the house has been made over to the beneficiaries.

A beneficiary can go to Court for an order for sale: unanimity not required.
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Re: Dissenting beneficiary.

Postby Hairyloon » Thu Dec 27, 2012 12:19 pm

atticus wrote:The executors/administrators appear to be failing in their duties...

I'd put that in the past tense: they have failed. I'd be happy to be corrected on that though.
Either way, what could be done about it?
A beneficiary can go to Court for an order for sale: unanimity not required.

The problem preventing sale is still extant. There are a few possible options, but none can be taken without a decision.
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Re: Dissenting beneficiary.

Postby dls » Thu Dec 27, 2012 5:43 pm

Two things.

Unless the will negates it they have a duty to sell. That is what they swore to do. A duty can be enforced against them eventually by the beneficiaries, and any one trustee can decide to sell.

It is not that it cannot be sold. It is that they and the beneficiaries are mistaken as to its value. It is worth what it is worth - not what they want it to be worth.
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Re: Dissenting beneficiary.

Postby Hairyloon » Thu Dec 27, 2012 6:30 pm

dls wrote:Unless the will negates it they have a duty to sell. That is what they swore to do. A duty can be enforced against them eventually by the beneficiaries, and any one trustee can decide to sell.

"They" being the executers? I doubt they swore to sell, what does the relevant oath actually say?
The decisions were made jointly by the beneficiaries.
It is not that it cannot be sold. It is that they and the beneficiaries are mistaken as to its value. It is worth what it is worth - not what they want it to be worth.

While that is true, under the terms of the problem, it may not be worth enough to cover the legal fees.
So I correct the point to: "it cannot sensibly be sold".
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Re: Dissenting beneficiary.

Postby theycantdothat » Thu Dec 27, 2012 9:37 pm

Whether this is a "probate" problem does not depend on how long it is since the probate was obtained, but whether the administration of the estate has been completed. The administration is complete when all the debts and taxes have been paid and the assets either vested in trustees (usually but not necessarily the executors) and/or distributed to the beneficiaries absolutely entitled. If part of the estate consists of land and it has not been sold or an assent executed vesting it in trustees or beneficiaries then, de facto, the administration is not complete - see Re King's Will Trust.

The executors' oath requires the executors to get in and administer according to law the real and personal estate. That does not necessarily mean selling all the assets. Whether they do or are required to sell depends on the terms of the will and all the circumstances.

If the land has been vested in the beneficiaries then it no longer forms part of the estate. Whilst it used to be the case that if one of two or more owners wanted to sell the court was obliged to order a sale, following the passing of the Trusts of Land and Appointment of Trustees Act 1996 the court has a discretion. In fact the courts had started to find reasons not to order a sale in every case and TLATA 1996 caught up with judicial thinking and reflects the social changes since 1925 when it was assumed that property was held as an investment.
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Re: Dissenting beneficiary.

Postby Hairyloon » Thu Dec 27, 2012 10:37 pm

theycantdothat wrote:Whether this is a "probate" problem does not depend on how long it is since the probate was obtained, but whether the administration of the estate has been completed...
If part of the estate consists of land and it has not been sold or an assent executed vesting it in trustees or beneficiaries then, de facto, the administration is not complete - see Re King's Will Trust.

OK, how is an assent executed? Can we put it up against a wall and shoot it? ;)
And what are the practical differences if it is a probate question or not?
The executors' oath requires the executors to get in and administer according to law the real and personal estate. That does not necessarily mean selling all the assets. Whether they do or are required to sell depends on the terms of the will and all the circumstances.

I haven't seen the will, but as far as I know, the house was left in equal share to the beneficiaries.
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Re: Dissenting beneficiary.

Postby dls » Fri Dec 28, 2012 6:29 am

An assent is a simple form of transfer. Readily obtainable either by research or from a lawyer.
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Re: Dissenting beneficiary.

Postby Hairyloon » Fri Dec 28, 2012 10:47 am

Let us assume that has not happened, and is prevented from happening for the same reason that prevents the sale.
Therefore the executors have not discharged their duty and this is a question of probate.
Does that mean the decisions rest with the exectuors?
If so, what is the limit of what they can decide?
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Re: Dissenting beneficiary.

Postby theycantdothat » Fri Dec 28, 2012 12:03 pm

If no assent has been made the property is still under the effective control of the executors and that is the difference between the property remaining in the estate or being assented to the beneficiaries. If there was a specific gift of the property and all debts and legacies have been paid and there is otherwise no reason for the executors to keep hold of the property they should execute an assent in favour of the beneficiaries. If there was no specific gift then the executors can sell and then distribute the proceeds of sale. However, generally speaking and if the beneficiaries are individuals and/or there are not too many of them, the executors should enquire whether the beneficiaries wish to retain or sell the property and proceed accordingly. What they should not be doing is prevaricating by neither selling nor executing an assent.
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