Here is a question to the blog clinic fast track from Tim who is dealing with the administration of his father’s estate.
My father recently passed away without a will, leaving his estate subject to intestacy. Initially, this doesn’t appear a problem as my two siblings and I will inherit 1/3 each.
He has some properties which he used to rent for a source of income, some of these were through a letting agent which is fine as they have been helpful and should be able to provide the valuations needed to apply for Letters of Administration.
However, there is one leasehold flat which he owns where I cannot find any trace of a tenant or any agency which deals with it. I also cannot find the keys.
I have a feeling that he has been letting a friend live there for free, the person in question has not been very cooperative since my father’s death and won’t return calls, messages etc.
There have been no regular rent payments showing on any of my father’s bank accounts for this address.
My father has been paying the council tax, water rates and electric himself.
There is no tenancy agreement.
I need to get this property valued to solve the intestacy, but I have a strong feeling that my surveyor won’t be allowed (obstructed by the resident) into the property for one thing.
Secondly what situation does this leave the property as technically anyone inside doesn’t live there on paper as my father has been paying the bills at that address.
Presumably, I can’t force the locks and change them when they are out? What is their status and how do I deal with them?
Also because we are in a state of intestacy we cannot fully administer the rest of his estate until we are granted Letters of administration.
A difficult problem for you Tim.
I should start by saying that I am not a trust and probate lawyer and so this is not a situation where I can advise fully.
For example, I understand that if there is no grant of probate or letters of administration, then it is not possible to serve a valid possession notice. If this is the case and the occupier (let us call him Mr A) is aware of this, he may be looking to take advantage of the situation so he can remain at the property.
So you need to consult solicitors to see what your rights are, as prospective personal representatives, to deal with the property at this stage.
Before doing this though, I suggest you first confirm that the property was actually owned by your father – ideally by doing a search at the Land Registry (you may already have done this). It would also be an idea to do some further investigations about Mr A – for example, who is on the electoral roll for this property?
Then – has he ever make any payments at all? There is a big legal difference between someone who does not make payments because he is allowed to live at a property rent free and someone who makes no payments and so is in arrears of rent under a tenancy.
Getting a valuation
Your first problem is to get the valuation so you can obtain letters of administration. Although one question you could ask solicitors is – is it possible to obtain letters of administration without this, maybe just by giving an estimated value of the property?
If this is not possible and if a proper valuation is essential, then I think your only course of action would be to contact the occupier, in writing, along the following lines. You may want to hand deliver the letter with a witness so you can prove it was delivered.
- Make the point that the property was owned by your late father and so in order to administer his estate you need access to carry out a valuation
If he refuses to allow access then send a further letter referring to your first letter and saying
- That as he is unwilling to allow access, and as this is essential to allow you to obtain letters of administration, you have no alternative but to apply to the court for an injunction
- If this proves necessary, then you will also be seeking an order that he be ordered to pay your legal costs
I think that you would be entitled to apply to the court for an order along these lines – but a specialist probate lawyer will know more about this. However, if Mr A thinks he is going to have a costs order slapped on him he may agree to let your surveyor in.
I suspect that the question of recovering possession of the property is not something you will be able to deal with until you have letters of administration.
But so far as Mr A’s long-term occupation is concerned, as he has clearly been there for some time with your father’s consent, you cannot just go in and change the locks.
I think, once the letters of administration have been issued and you have the legal right to deal with the property, he should be put to proof of his right to be there.
So, for example, you could write saying that as you cannot find, and he has not provided you with any proof to show that he has ever paid rent or had any legal tenancy, you can only assume that he was allowed to stay there as a guest or licensee of your father.
In which case any license to occupy you, as personal representative of your father’s estate, are entitled to and hereby revoke.
Give him a period of time, say 28 days, to vacate and say that if during that time he does not either vacate or provide clear documentary proof of his right to occupy the property, you will be entitled to take it that – as he remains without your license or consent – you are entitled to and will be bringing proceedings to evict him from the property as a trespasser.
And see what happens. If Mr A fails to respond, then all you can do is issue proceedings against him using the ‘squatters’ procedure. If he wants to stay there, he will have to come up with evidence to show his legal right to remain.
However, I don’t think you can do this until letters of administration have been issued and any action should be taken under the guidance of your solicitors.