a will in probate

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    i have an interesting case, which i would welcome a second opinion – as sherlock holmes may have said

    a customer has moved in to his great uncle’s house in November 2008 – his great uncle had passed away in late october.

    the estate is still waiting to be resolved and is administered by the customer’s mother (that’s handy you may say) – the estate is now charging the customer £600/mth to stay in the house. now i think this is fishier than a can of pilchards, as i think the customer could stay rent free in the accommodation, as there was no previous agreement between the great uncle and the customer, and why is the estate charging rent –

    can the estate charge rent and have a legal rental agreement in these circumstances

    what do you think


    [quote:b9ea860e82]as there was no previous agreement between the great uncle and the customer…[/quote:b9ea860e82]
    But he only moved in after the great uncle died. Of course there would not have been any agreement between them. I’m also not sure why you say he could live in the property for free… Is your customer likely to be a beneficiary of the will? If so that would not give him any rights before the estate was settled.

    I’m no expert on wills and probate, but I think the estate has to be managed as a seperate entity regardless of who is administering the will. So I’m pretty sure there can be an enforceable liability. You would still need to look into all the usual reg 9 issues.


    Hi Michael,

    thanks for that – i think that is my real question – is this an enforceable liability?

    John Boxall

    I think I might start out by asking for a copy of the will; if your claimant isnt a beneficiary, then it would not be as easy to argue that there isnt a rent liability. If on the other hand he was the only beneficiary with his mother as executor things might be a little different.

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield


    thanks for that – we have asked for a copy of the will, but my main concern still exists – if the role of an executor of a will/estate is to keep things ticking over in the manner of the person who passed away i.e keeps a business running or collecting rents for existing tenancy, can they also commence actions on their own initiative, such as set up a tenancy agreement at a property, where there was previously no rental liability.

    hope that makes some sense


    The estate means the property left by the deceased person and it belongs legally to the executor. Any dealings are conducted with the executor in person, not with the estate itself – the estate is just some money and objects, so you deal with the person who owns them. That’s the executor. Obviously the executor must act as a trustee and deal with the estate in a way that is consistent with the wishes of the deceased and in the interests of the beneficiaries. But within those limits, the executor can do what they want with what is for the time being their property. If a house is to be sold so that its value can be shared out, the executor might take the view that it would be a good idea to earn some money for the beneficiaries by renting it out while it is on the market. So in principle I don’t see any legal obstacle to the property being rented out to someone.

    The problem arises when the tenant is someone who stands to gain from the final distribution of the estate. You are then in Reg 9(1)(e) territory – the claimant is paying rent to a trustee of a trust of which the claimant is a beneficiary. You then need to consider whether it would have been more reasonable for the trustee to let them live rent-free, as a kind of down-payment, and whether the existence of the tenancy is therefore an abuse of the scheme.

    If the tenant is not a beneficiary of the will, but is still closely connected to the trustee (like a son as in your case), the fact that the mother is executor of an estate is irrelevant but you still have all the normal considerations that come into play where landlord and tenant are related – is there really an intention to charge rent, is it commercial etc.

    So in summary: yes the executor can rent out the property I would say; and the fact that there is a deceased person’s estate involved here is only directly relevant if the claimant is a beneficiary because this brings Reg 9(1)(e) into play.


    Peter – i have said it before and i will say it again – you da man!

    many thanks for that, i have a much clearer idea of how to proceed with this one now

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