IRISH INDEPENDENT : Friday October 26 2012: Executor – Probate query

Cosgrove Gaynard Solicitors

I am executor to my mother’s estate. One of my siblings refuses to leave the family house so that I can sell it and share out the proceeds three ways as per my mother’s will. Does he have the right to live there forever (as he wants to do) or can I have him evicted?

IRISH INDEPENDENT : Friday October 26 2012: Executor – Probate query

I am executor to my mother’s estate. One of my siblings refuses to leave the family house so that I can sell it and share out the proceeds three ways as per my mother’s will. Does he have the right to live there forever (as he wants to do) or can I have him evicted?

As executor you are obliged to identify, gather and protect the assets of the estate, pay all debts and liabilities, and distribute the net estate to the beneficiaries as soon as possible.

In doing this you are bound to follow the directions set out in the will, making you obliged to sell the house and share the net proceeds amongst the beneficiaries.

Susan Cosgrove of Cosgrove Gaynard Solicitors says: “Your sibling cannot simply decide to remain in the property unless he has the consent of all beneficiaries. If he refuses to vacate the property, eviction proceedings will be required.

“This can be an expensive and lengthy process, although if successful, costs should follow the event, and be awarded against your sibling.

“Clarify that your sibling is not contending the will for some other reason, eg a promise that he would be allowed to remain in the property.

“There is an alternative to sale. A deed of family arrangement between all of you will let one sibling remain there if he buys out the shares of the other two.

“To facilitate family arrangements after death, there is provision that any variation made by deed within two years of the death will be regarded as made by the deceased at the time of his/her death, and so they are not treated as a further disposal of the assets.”

Can you tell me about the new 80:20 scheme I heard about for mortgages? Is it only available on NAMA properties and where can I find them?NAMA is encouraging the sale of houses and apartments it needs to dispose of by offering, in conjunction with EBS, BoI and PTSB, insurance to protect against future negative equity by its “deferred payment scheme”.

A pilot 115 properties went on sale in May and another 180 have just gone on the market.

Essentially, the insurance only comes into play if the house has fallen in value by more than 20pc after five years.

The borrower has to meet all the normal borrowing criteria, put down at least a 10pc deposit and pay back the full mortgage.

If, after five years, the house is deemed to be worth at least 20pc less, then a part of the mortgage is written off.

So, you borrow say, €180,000, pay it as normal, and if, five years on, the house is only worth €140,000, then your “new” mortgage will drop by €40,000.

If there is an increase in value, then the homeowner won’t notice any difference as they will have been paying the full amount anyway.

NAMA doesn’t own the houses, just the loans that were used to build them.

A listing is on www.nama.ie along with a guide to the scheme.

– siryan@independent.ie

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