Overpayment of inheritance - who is liable?

[des8]

Re: Overpayment of inheritance - who is liable?

Sorry, but it is difficult to advise on how to reply to an unseen letter.
If you can't post it up, could you possibly copy it out manually?

[klingklang]

Re: Overpayment of inheritance - who is liable?

Sorry, but it is difficult to advise on how to reply to an unseen letter.
If you can't post it up, could you possibly copy it out manually?

Ok I'll type it up asap. Thanks

[klingklang]

Re: Overpayment of inheritance - who is liable?

Sorry, but it is difficult to advise on how to reply to an unseen letter.
If you can't post it up, could you possibly copy it out manually?

This is the second letter I received.

We write further to our letter of ?? October and note we have not heard from you.

We would be obliged if you could give this matter your urgent attention.

If you are in any doubts as to your rights in this matter then we would suggest that you make immediate arrangements to consult your own solicitor for advice.

We would advise you that if you do not return the said sum of ££££££ that has been overpaid to you then the other two beneficiaries will commence court proceedings against the estate who will then arrange to join you into the proceedings.

As you have no defence to the claimyou will ultimately be ordered to refund the overpayment that has been made to you and you will also be ordered to pay costs of the action that could be substantial.

We trust that such action will not be necessary and we look forward to hearing from you during the course of the next 7 days.

We can confirm that we have already received back the overpaid monies from Tom, Dick and Harry.

Yours faithfully

[des8]

Re: Overpayment of inheritance - who is liable?

Sounds like they are trying to scare you into complying with their request.
I would suggest something along the lines of:

Following receipt of your letters of & I am of the opinion that I have no legal obligation to return any of the benefit I have received.

I am sure you do not need to be reminded that the executor is personally liable for the distribution of all the assets that pass though his hands.
This means that unless he has taken steps to protect himself (executor's liability insurance)and he has paid out all the assets and there is a subsequent claim, he, the executor, is personally liable to meet that claim.
I understand the Executor was aware of the existence of the two beneficiaries before he distributed the estate's assets, and so it was reasonable for me to presume he had sufficient assets in hand to pay all beneficiaries.
I have been advised that an executor has no claim against an overpaid beneficiary.
Under the circumstances I used the benefit I received to redeem a mortgage, and so the funds are no longer available in any event.

Yours etc.

Others will be along in due course, and may have other suggestions.

Meanwhile may we ask how much is involved in this clawback and is there a family dispute behind the problem?
Or is it just that you have used the bequest?
The answers could possibly have a bearing on how to resolve the problem.

[klingklang]

Re: Overpayment of inheritance - who is liable?

Thanks for your suggestion. My share of the clawback is not far off £20k. No family dispute as such but I don't trust the executer one little bit. The executer and the father of the 2 additional beneficiaries have become personal friends so how they can claim they didn't know about them is beyond me. I guess the father disowning these 2 children may have something to do with it. I also suspect there is money missing from the estate but that is another matter. The executer has handled the whole matter disgracefully.

[MissFM]

Re: Overpayment of inheritance - who is liable?

Thanks for your suggestion. My share of the clawback is not far off £20k. No family dispute as such but I don't trust the executer one little bit. The executer and the father of the 2 additional beneficiaries have become personal friends so how they can claim they didn't know about them is beyond me. I guess the father disowning these 2 children may have something to do with it. I also suspect there is money missing from the estate but that is another matter. The executer has handled the whole matter disgracefully.

All the more reason, KK, to follow Des8's very sound suggestion in post 19 above, IMVHO.

Good luck, whatever you decide to do. x

[des8]

Re: Overpayment of inheritance - who is liable?

From your various posts I assume the will did not name all the beneficiaries, but referred to a class eg my children as residuary beneficiaries.
Is the executor part of the family or a close friend? If not what sort of proof do you have that he knew about them?

Regarding probate, you can find when it was granted here: https://www.gov.uk/search-will-probate.
It might be helpful to find out when probate was granted, when your share was paid to you and when the disowned children made their claim.

Whilst I don't think a successful claim can be made against you, it might be useful to see if there are errors in dealing with the estate.

[klingklang]

Re: Overpayment of inheritance - who is liable?

From your various posts I assume the will did not name all the beneficiaries, but referred to a class eg my children as residuary beneficiaries.
Is the executor part of the family or a close friend? If not what sort of proof do you have that he knew about them?

Regarding probate, you can find when it was granted here: https://www.gov.uk/search-will-probate.
It might be helpful to find out when probate was granted, when your share was paid to you and when the disowned children made their claim.

Whilst I don't think a successful claim can be made against you, it might be useful to see if there are errors in dealing with the estate.

Spot on, the residuary estate was to be divided between a class of which there are now 2 more. The executor is part of the family although we are not close. I have a signed statement from another member of the family that they informed the executor about these additional beneficiaries. The date of probate was December 2013 although I'm not sure what bearing this has?

[des8]

Re: Overpayment of inheritance - who is liable?

It is the executor's responsibility to discover the beneficiaries of the will.
In dealing with problems of this sort it can be helpful to have a timeline to work with, and note if there are discrepancies.
On the information available there seems to be no doubt that the executor is liable to the two beneficiaries he missed.
Probate was granted nearly 12 months ago.
The will named a class of beneficiaries who were family.(see note below)
The executor is part of the family.
Assuming distribution of the residual estate was not made until June 2014, the executor had six months in which to advertise for creditors and to identify all the beneficiaries.
This should not have been too difficult if they were all family.
It is not for beneficiaries to make a claim, the liability is for the executor to identify them.
If he fails the beneficiary has to claim against the executor (not the estate), and it is difficult to see how an executor can join another beneficiary to the action.
You have evidence that the executor had been advised about these 2 beneficiaries (before distribution was made?)

You said the executor was friendly with the father of the two beneficiaries who were missed out.
You also said the father had disowned these two children.
I've assumed the testator had 2 children with whom he had no contact, and the father who is friendly with the executor is in fact a step father.

From the information you have given it seems the executor was lax in fulfilling his duties, and remains liable for the shortfall.

[klingklang]

Re: Overpayment of inheritance - who is liable?

Your assumptions are along the right lines but maybe easier to explain if I can send you a personal message? Thanks for all your help so far.

[des8]

Re: Overpayment of inheritance - who is liable?

Feel free

[klingklang]

Re: Overpayment of inheritance - who is liable?

Hi des8, did you get my message? Thanks

[des8]

Re: Overpayment of inheritance - who is liable?

Hi
Yes, pm received but I've been out all day and just got in.
I'll post up later when I've walked the dogs and eaten!

[klingklang]

Re: Overpayment of inheritance - who is liable?

No worries I'm new to this message board stuff. Just wasn't sure if I'd sent it. Thanks for your time it's much appreciated.

[des8]

Re: Overpayment of inheritance - who is liable?

Back again
Thanks for the PM explaining the relationships.
Overall I view your situation from two aspects.

Firstly the legal side.
The executor is responsible for distributing the assets of the estate according to the will.
It is his responsibility to identify the beneficiaries.
From what you have said it seems inconceivable that he did not know of the two heirs he failed to include.
In fact you have a statement from another beneficiary confirming the executor's attention had been brought to their existence (prior to settling the estate?)
Your share was paid to you, and you had no reason to suppose it was in excess of your entitlement.
You haven't signed a receipt giving the executors full discharge (which could allow you to proceed against the executor if you had grounds and so wished) but assuming you were paid by cheque gives a presumption that you have accepted the terms on which it was given.
The terms on which it was given were "this is your share" as per copy accounts supplied to you.
If the two "forgotten" beneficiaries were to sue the executor for breach of trust IMO you could only be joined to the action if it was alleged you knowingly participated in that breach.
Otherwise there is no cause of action.
Even if you were somehow sued you would have the defence of "change of position" I.e. believing the money to be rightly yours you have spent it and it cannot be recovered.

The letter from the solicitor was, I think, aimed at intimidating you so that you would come to an agreement with them to return some if not all, of the overpayment.

That brings me to the second aspect.
I don't know how deep the family rift goes, or why you distrust the executor.
However it seems that this situation is only going to worsen , and if only to avoid more threats and stress have you been able (and would you be willing) to discuss the matter directly with the executor?
I'm not moralising, or wringing my hands over fractured families, but suggesting a way forward that might give you some relief.

Please note that I am not legally trained, and if court proceedings should commence I would advise you obtain legal advice