HiI an currently looking for some advice. I have been named as a second executor in a will. There is a main executor (the deceased person's mother) The deceased passed away in spring 2010 (my friend) the main executor has not shown me the will and I have only recently received access to this. It states that the main executor and myself (the trustees) are directed to make over the whole residues and remainder of the deceased's said means and estate to the deceased's children after funeral expenses. It states that this money and any other money should be placed in trust untill the children are 18 yrs of age.The main executor did not involve me in closing down the bank accounts of the deceased and informed that she withdrew all money from the deceased accounts before closing them down. Evidently this money was not been placed in trust for the children as directed. Also there is a pension payout which the main executor has placed in trust (in an account under her name) and has kept 10,000 separate for emergencies. She has not included me or named me on any of the trust paper work).Social work have recently requested a copy of the will and the main executor has refused to provide this. There is no issues at all with the children and it would be rightfully expected that she be the person with parental rights to them. She is a good grandmother and cares for the children very much. The main executor is adamant that the will shall not be seen by the social work department. Can they legally access this as I am sure it should be read by the authorities etc to ensure that the deceased's wishes have been carried out? She said she has instructed her solicitor not to show anyone the will.Can you advise me of any responsibility I have for this will. Should I debate that I have not been legally included in any of the finical proceeding in relation to ensuring the money is secured for the children?? I contacted the solicitor 2 days after the deceased passed away (as requested) to ensure that the bank accounts were closed. The solicitor advised that I should inform the main executor to close the account down. I did do this and she became upset with me and informed that she would be emptying the accounts. I rang the solicitor back and reported this to him and advised that I did not know which banks my friend used and could not therefore contact them myself. The main executor withdrew around £300.00per day untill the accounts were empty. However she was looking after the kids and obviously needed some money to clothe feed them etc. The main executor then choose to use another solicitor.The states that the trustees shall have the fullest powers of realisation, investment and intromission with the deceased's estate as if they were beneficial owners. I have not been included in any of the formal paperwork etc with the trust fund or any other proceedings. I feel I have legal involvement as requested by my friend.I am unsure if I have a responsibility role here or if I should just stay out of it. Can you please advise me of this.I do not want to rock the boat with this lady as my priority is seeing the children and being in their lives as requested by their mother.
Province/Country relating to question : Scotland
I have not made any legal attempt to do anything about this
As a co-Executor you have an equal responsibility for ensuring that the proceeds of the deceased's estate are properly dealt with in accordance with the Will. If this is not the case (albeit that this appears to be for no malicious reason) then you have a duty to ensure and insist that all accounts ect opened are done so as directed in the will and the proceeds used accordingly. The reason for this is that you have been appointed to ensure that the beneficiaries receive what they are entitled to and that they do not lose out in any way. If this happens then you will be personally liable to account to the beneificiaries in the future. If you feel that you cannot intervene in this to put matters right and you know the current position then you only real option would be to resign form acting as an Executor. This is done by way of a Deed of Declinature if you ahve played no part or a Deed of Resignation if you have carried out any executors duties to date.
As regards XXXXXX XXXXXXXX, I am unclear as to why they would need to see the will and on this basis unless you get get clear reasons which are plausible I cannot see a need to show them the Will.
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I should have mentioned that in the event of the gran (main executor) being unable to look after the children or if she dies the will states that I will become there legal guardian. If I resign from acting as an executor then the children will most probably go to the care of other family members (in the event of the gran being unfit/passing away) which their mother clearly did not want. She had valid reasons for this and I would like to keep my promise to look after them in the event of anything happening to the grandmother. Should I look to have legal representation and attempt to challenge the main executor? If I do would it be possible for the trust fund to be ammended with my name being added to this to secure it for the children's future.
You being Executor wouldnt normally have any effect on you also being appointed as Guardian and even if you were no longer executor you would make it clear that any other provisions in the will relating to you personally remain. If you decide to stay on as executor then you will need to ensure that everything is carried out in the administering of the estate according to the will in the best interests of the beneficiaries as anything short of this would leave you open to liability in the future. It would probably be good to consult a solicitor on this point to assist you in ensuring that everything done so far is put right as it would certainly be possible to change any investments made etc to be constituted correctly and this would include the trust.
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LLB (Law Degree) and BA(Hons) Business Degree and Diploma in Legal Practice. Partner in own law firm
thank you. Your assistance is greatly appreciated. I will seek a child and families solicitor in Scotland
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