DWP claw back long after all funds dispersed by appointed solicitor

[Judycc]

My mother died in November 2013 and the appointed Executor (an elderly neighbour) renounced this and it passed to solicitor with me taking on role of Personal Representative. As I live in Canada the probate solicitor was appointed under Power of Attorney. All matters were completed by solicitors and estate funds were distributed in February 2015. In May 2015, I received an email from the solicitors stating that DWP had requested all bank statements of my late mother from 2006. Last week, long after I had assumed everything had gone away, I received an email stating that DWP wanted to recover just under GBP10,000 of pension credit overpayments from beneficiaries: my sister and I. Horrible for me as the rate of exchange has changed dramatically and will mean I will have to muster up around the equivalent of GBP6250 at the current rate of exchange almost one year later after funds were disbursed and obviously these amounts are no longer to hand having been used to pay down mortgages etc.

While I was prepared to pay my half as would be right I assume (should DWP be correct and I wouldn't know), I emailed that after I had paid my fair share, that I would not be responsible for any non-payment by my sister, who lives in England and whom I assume will not have funds to pay, nor would anyway. By return email, I have been informed that unfortunately as EXECUTOR of the estate, I would be responsible for all of it? Is this correct? I didn't think I was the Executor but just a Personal Representative? During a brief visit to England during my mother's death, I dealt with the renouncement of the neighbour and went to the solicitor to sign papers. I do not recall ever being told I was Executive and thought they were.

Could you please help. This is terrifying amount of money to us and I don't know what to do. Thank you.

[des8]

Re: DWP claw back long after all funds dispersed by appointed solicitor

Hi and welcome.
Executors are appointed by the testator in a will.
Personal representatives are the administrators appointed if there are no executors appointed, or if being appointed they renounce their position.

So in so far as you were the PR the DWP are correct in approaching you for repayment of the overpayment, if the beneficiaries can't repay their share.

However, did the solicitor acting for you ever have any communication from the DWP warning him not to distribute the estate until they had finished their investigations.
Also you can ask the DWP to prove the overpayment.

I also wonder if the DWP would actually chase you for the money as you are in Canada.
Others might know

[Judycc]

Re: DWP claw back long after all funds dispersed by appointed solicitor

Hi and welcome.
Executors are appointed by the testator in a will.
Personal representatives are the administrators appointed if there are no executors appointed, or if being appointed they renounce their position.

So in so far as you were the PR the DWP are correct in approaching you for repayment of the overpayment, if the beneficiaries can't repay their share.

However, did the solicitor acting for you ever have any communication from the DWP warning him not to distribute the estate until they had finished their investigations.
Also you can ask the DWP to prove the overpayment.

I also wonder if the DWP would actually chase you for the money as you are in Canada.
Others might know

Thank you for your quick response. Yes, the executor my Mum appointed in her will, did not want to do it and renounced their position, all done through the Probate/Will company who then filed the Deed of Renunciation and via Power of Attorney for me, completed all Mum's affairs, which they said would stop documents having to be sent to Canada for signing. I was not instructed that I was in fact responsible for anything else and understood that they would take care of everything and would know what was going on. A letter was sent to DWP about a week after her death by this company, informing them of Mum's death and from there I am not sure what communication was received or sent to them. DWP did write to the solicitor involved in the selling of Mum's house to let them know in May last year (disbursement was February 2015) that they were looking into a possible overpayment who forwarded it to the Will/Probate Registered Trust and Estate Practitioners, who then informed both my sister and I that they were investigating and requesting bank statements. This was early June, 2015. They said that they doubted that anything would come of it and not to worry. We did not hear anything further until last week.

Is it better for me to contact DWP and ask for proof? Does this make the matter worse? I have spoken to my sister, the other beneficiary who says she does not have funds to repay and I told her that on some of these forums, that DWP will allow an amount per week to be paid over time. Is this correct, because at this stage I only want to be responsible, quite rightly for my half, and if so, should I be negotiating for both of us with DWP. My sister is disabled and has a speech impediment which might make it hard for her to communicate. I am sure the Probate/Will people will charge us for every email and letter, so don't want a further bill from them too.

While your comment about not chasing me in Canada is valid, I would like to have this matter resolved and no call back on me. Thank you for your advice.

[des8]

Re: DWP claw back long after all funds dispersed by appointed solicitor

So time line is:
Your mother passed away Nov 2013
DWP advised by letter one week later
Probate applied for when? (it is at this point DWP pick up on cases to be investigated.
Was a statutory advertisement for claimants and creditors placed and if so when?

If those handling the estate on your behalf have been negligent you may have a claim against them (although proving & enforcing it might be difficult & expensive from Canada)

Certainly approach DWP yourself and ask them. After all would you pay an unsubstantiated demand from any Tom, Dick or Harry without proof of the debt?

Have the DWP "followed the money" and actually tried to recover from your sister?
if your sister has spent her money, she could possibly plead change of condition.

DWP may be prepared to accept payment by instalments from your sister for her share, but they may see you as executor as the easier option.

[Debt Camel]

Re: DWP claw back long after all funds dispersed by appointed solicitor

It is reasonable to ask for proof of the debt. I have done this on a couple of occasions for clients. The paperwork you will get back is likely to be extensive . The ones I have dealt with were all correctly calculated but this may not be the same in your case.

You should also ask the DWP for copies of any letters which they sent to your lawyers, so you can see if they had been informed before the money was distributed..

[Openlaw15]

Re: DWP claw back long after all funds dispersed by appointed solicitor

Thank you for your quick response. Yes, the executor my Mum appointed in her will, did not want to do it and renounced their position, all done through the Probate/Will company who then filed the Deed of Renunciation and via Power of Attorney for me, completed all Mum's affairs, which they said would stop documents having to be sent to Canada for signing. I was not instructed that I was in fact responsible for anything else and understood that they would take care of everything and would know what was going on. A letter was sent to DWP about a week after her death by this company, informing them of Mum's death and from there I am not sure what communication was received or sent to them. DWP did write to the solicitor involved in the selling of Mum's house to let them know in May last year (disbursement was February 2015) that they were looking into a possible overpayment who forwarded it to the Will/Probate Registered Trust and Estate Practitioners, who then informed both my sister and I that they were investigating and requesting bank statements. This was early June, 2015. They said that they doubted that anything would come of it and not to worry. We did not hear anything further until last week.

Is it better for me to contact DWP and ask for proof? Does this make the matter worse? I have spoken to my sister, the other beneficiary who says she does not have funds to repay and I told her that on some of these forums, that DWP will allow an amount per week to be paid over time. Is this correct, because at this stage I only want to be responsible, quite rightly for my half, and if so, should I be negotiating for both of us with DWP. My sister is disabled and has a speech impediment which might make it hard for her to communicate. I am sure the Probate/Will people will charge us for every email and letter, so don't want a further bill from them too.

While your comment about not chasing me in Canada is valid, I would like to have this matter resolved and no call back on me. Thank you for your advice.

Yes DWP can make claims against the estate of someone who has passed away. However the claims made are against the diseased claimant, ie not the appointee, ie executor/ executrix (female) at DWP common law (based on judge's deciding cases). DWP has certain laws but Parliament in 2011 (who make the main law, ie statutes) said that any overpayment claims must be made under statute and not common law. It is possible that claims can be made under the Welfare Reform Act (2012, I think) therefore. However, what is very relevant is if the overpayment came about owing to fraud or failure to disclose change of circumstances. Just because claims are possible against the estate does not mean that they will succeed. The law is not at all straight forward. These claims can go on for a long time. It is very controversial law so it's not automatic. The law for joint claimants for instance is not straight forward and if any remedy is available involves tracing...ie mixed bank accounts creates problems. DWP in any event must also be able to refer to a law that grants powers, this goes right back to ancient common law in public law systems. Prior to your mother's death was she either accused of fraud or had she, according to your knowledge, failed to disclose something that she should have, ie a change of circumstances.

So before you hand over any statements about your mother's bank account, ask for DWP to produce a Parliament Act that permits them to do it. If they do have a legal right to investigate your mother's bank account they must have a good reason for doing so, ie fraud. If there is no fraud and this is not your mother's fault, then it is DWP error. They want the bank statements so they can try and confiscate money under the tracing rules but once money has mixed in a bank account the law is not straight forward. Unless you, or the other beneficiary's have committed fraud or failed to disclose something you/ they should have, the claim can only be against your mother's estate. DWP does not have any claims against the beneficiaries or the executors.

[des8]

Re: DWP claw back long after all funds dispersed by appointed solicitor

The legal basis for a Recovery From Estates
is Section 126 of the Social Security Administration Act 1992, which
requires the personal representatives to provide such information relating to the assets
and liabilities of the deceased's estate as the Secretary of State may require.

RFE, as part of DWP, is a potential creditor and therefore has a right to approach the executor
for relevant information. following which a decision is made about whether there has been an overpayment which should be repaid.

The Legal obligations of the personal Representative are to collect the assets, pay the estate debts and distribute any residue to the beneficiaries,
If the executor distributes the assets before paying the debts, and those assets cannot be recovered from the beneficiaries, the executor becomes liable unless they have placed a section 27 advertisement in the London Gazette.

[Openlaw15]

Re: DWP claw back long after all funds dispersed by appointed solicitor

The legal basis for a Recovery From Estates
is Section 126 of the Social Security Administration Act 1992, which
requires the personal representatives to provide such information relating to the assets
and liabilities of the deceased's estate as the Secretary of State may require.

RFE, as part of DWP, is a potential creditor and therefore has a right to approach the executor
for relevant information. following which a decision is made about whether there has been an overpayment which should be repaid.

The Legal obligations of the personal Representative are to collect the assets, pay the estate debts and distribute any residue to the beneficiaries,
If the executor distributes the assets before paying the debts, and those assets cannot be recovered from the beneficiaries, the executor becomes liable unless they have placed a section 27 advertisement in the London Gazette.

"Late Claim Against the Estate
Estate correctly administered
16.77
Where the estate has been correctly administered and distributed
before the PR received the Department’s claim, the PR
should be advised that no further action will be taken to pursue the claim"

If the estate has been correctly administered before DWP's solicitor send a letter to make a claim there are no claims against the estate, assuming it was not fraud.

Correctly administered likely means the formalities for Wills and beneficiary gifts, and or dealing with debts etc.

The facts:

"My mother died in November 2013" & "estate funds were distributed in February 2015. In May 2015, I received an email from the solicitors stating that DWP had requested all bank statements of my late mother from 2006. Last week, long after I had assumed everything had gone away, I received an email stating that DWP wanted to recover just under GBP10,000 of pension credit overpayments from beneficiaries: my sister and I.

The mother died in November 2013 so there was ample time for DWP/ solicitor to make a claim before the estate was administered by the PR. Since the estate's administration date has passed DWP cannot make claims, assuming the estate was dealt with correctly. DWP can simply do nothing and are seemingly entitled to nothing.

[des8]

Re: DWP claw back long after all funds dispersed by appointed solicitor

Was a notice under section 27 of the Trustee Act 1925 placed in the London Gazette?
If it was, as executor you will be protected.
However the DWP, as creditor, can pursue each of the beneficiaries for their proportion of the overpayment, altho' they may not chose to do so. Each beneficiary can dispute the claim.
Whether or not the DWP claim is valid should be first ascertained.

[Openlaw15]

Re: DWP claw back long after all funds dispersed by appointed solicitor

Under the Social Security Act 1992 at section 126, DWP must get a court order to force any information from the administrator of the will. However, the defence for the executor/ administrator would be the will has been administrated (ie distributed) February 2015 whereas DWP made claim May 2015, after administration date. DWP could simply have made a claim against the testatrix's estate anytime from November 2013 onwards when this person died. DWP, according to ORG (their guidance), states that late claims must not be actioned. So if DWP attempt to take to a county court under s.126, simply ask the court to 'set aside' on the further basis that the executor did everything that was reasonable for them to do in their situation at the time. SSA 1992 does not burden third parties such as beneficiaries as that would be a breach of natural justice. NB: This assumes that there has been no fraudulent activity by the parties.

[Judycc]

Re: DWP claw back long after all funds dispersed by appointed solicitor

Thank you for your reply.
I can't tell when Probate was applied for, as I only have itemised billing records from the company (Registered Trust and Estate Practitioners) but letters went out to Winchester Probate Registry on 03/02/2014, 25/03/2014, and 01/04/2014 and they spoke to them on 11/02/2014. Would I be right to presume in here that Probate was applied for?

I cannot see any mention of an advertisement being placed in any newspaper.

Both my sister and I have been notified by the Trust and Estate Practitioners of DWP's decision to recover equally the amount of money from both of us. The letter was sent from Recovery from Estates Debt Management (BF) /Department for Work and Pensions dated 31/12/2015 and clearly states that the amount must be paid by 28 January, 2016. The explanation for the overpayment is just a chart Called Treatment of Income and Capital which is just generic and not specific to the case.

There was a GBP30,000 bond discovered after Mum's death which is the cause of undeclared income and the reason for the clawback.

Specifically, is it better for me to call DWP or just pay my half and let me sister call for herself to work out a payment plan for her or should I try and get in touch with DWP - not sure any of those numbers work from Canada, but will find out, and ask for a clearer breakdown?

I am disappointed and extremely upset, with the Probate/Wills company for not holding back funds, as this must happen quite often and I shouldn't have unknowingly been put into this position of responsibility for my sister's portion, knowing the precariousness of her behaviour at the start of this. I am encouraging my sister to contact DWP herself to work out her debt reconciliation and hope for the best (for me).

As I have very little time before the one month is up, I have to act fast and would appreciate your advice as I am still very confused. I don't doubt the overpayment given the discovery of the unknown bond, so I do not have a problem paying my half or should I have the amount broken down by DWP so I understand properly how they came up with the final total?

Thank you for your help.

- - - Updated - - -

Thank you, and that is good advice.

- - - Updated - - -

Thank you for the reply. There was a bond that was discovered after my Mother's death, that had been rolling over since 2003. It is this that has likely caused the overpayment, I believe.

[Judycc]

Re: DWP claw back long after all funds dispersed by appointed solicitor

Please see my reply to Openlaw15 as I attached it to that one. Thank you

[des8]

Re: DWP claw back long after all funds dispersed by appointed solicitor

The probate company should have placed an advertisement in the London Gazette. This would have protected you as EXECUTOR.
If they did not, and DWP claim the overpayment from you, you may have a claim against the probate company.

However DWP are requesting repayment from you and your sister as beneficiaries.They are following the money.
You can dispute your liability to repay this money with a claim of change of condition.
Basically this means you have spent the money, and so it is no longer available.
However what one has spent it on is important. If it was spent on repaying debt, it won't count.
You need to show the money has gone on something you would not, eg normally buy. Perhaps a cruise?

If your sister has spent her share so it is not recoverable she should not enter into an arrangement with DWP.

It is unlikely that DwP have miscalculated the amount owing, their mistakes tend to be in my experience to do with correct procedures.
You have identified the reason for the alleged overpayment, so there is probably little value in pursuing that line as it will only cause more stress and work.

[Openlaw15]

Re: DWP claw back long after all funds dispersed by appointed solicitor

Thank you for your reply.
I can't tell when Probate was applied for, as I only have itemised billing records from the company (Registered Trust and Estate Practitioners) but letters went out to Winchester Probate Registry on 03/02/2014, 25/03/2014, and 01/04/2014 and they spoke to them on 11/02/2014. Would I be right to presume in here that Probate was applied for?

I cannot see any mention of an advertisement being placed in any newspaper.

Both my sister and I have been notified by the Trust and Estate Practitioners of DWP's decision to recover equally the amount of money from both of us. The letter was sent from Recovery from Estates Debt Management (BF) /Department for Work and Pensions dated 31/12/2015 and clearly states that the amount must be paid by 28 January, 2016. The explanation for the overpayment is just a chart Called Treatment of Income and Capital which is just generic and not specific to the case.

There was a GBP30,000 bond discovered after Mum's death which is the cause of undeclared income and the reason for the clawback.


What details do you have of this bond? When did DWP become aware of the Bond?

Specifically, is it better for me to call DWP or just pay my half and let me sister call for herself to work out a payment plan for her or should I try and get in touch with DWP - not sure any of those numbers work from Canada, but will find out, and ask for a clearer breakdown?

Well what gifts passed to you from the will? Have you purchased anything with the money yet. DWP potentially could go after you, ie damages (claim in personam) or any property you have (claim in rem) usually for fraud. Not disclosing a material fact ie the bond is not necessarily fraud.

I am disappointed and extremely upset, with the Probate/Wills company for not holding back funds, as this must happen quite often and I shouldn't have unknowingly been put into this position of responsibility for my sister's portion, knowing the precariousness of her behaviour at the start of this. I am encouraging my sister to contact DWP herself to work out her debt reconciliation and hope for the best (for me).

As I have very little time before the one month is up, I have to act fast and would appreciate your advice as I am still very confused. I don't doubt the overpayment given the discovery of the unknown bond, so I do not have a problem paying my half or should I have the amount broken down by DWP so I understand properly how they came up with the final total?

This complex and do not let them rush you. Tell them you're an innocent third party and not the claimant.

Thank you for your help.

- - - Updated - - -

Thank you, and that is good advice.

- - - Updated - - -

Thank you for the reply. There was a bond that was discovered after my Mother's death, that had been rolling over since 2003. It is this that has likely caused the overpayment, I believe.

What knowledge did your mother have of this bond, would she have purposely concealed this information?

What knowledge did you have of this bond. Were you aware that your mother did not reveal this to DWP?

This is not a criminal consequence for you, it's a civil matter I believe. Consider letting them take you to court for the amount rather than you volunteer to pay anything. Remember what passed to you through the will was received by you in good faith. Let them make claims against you (personam) or any property that you have (rem). The problem they will have is proving what you own from what was passed to you in a will. Consider not handing them over any of your bank statements unless you're ordered to by court. You can hand over your statements etc if they request them and the court will permit this too, but in my view you're not obligated to.

[Judycc]

Re: DWP claw back long after all funds dispersed by appointed solicitor

Thank you. You are saying if you blew the inheritance on a Round the World Trip and the money has gone, you can claim a change of condition, but if you used it to pay down your mortgage, you have to repay the amount?

Therefore, I should pay my half share, but if I become liable as Personal Representative/Executor for my sister's portion, I should look at a claim against the probate company, who did not protect me via the advertisement in the London Gazette?

As far as I know, my sister used her inheritance to pay down her mortgage, so if this is the case, and she is unlikely to get another mortgage given her disabilities and living on benefits, should she then phone DWP to explain this and find a way for her to pay off her portion?

Thank you so very much for all this valuable advice. It is extremely confusing, and living in Canada makes it extraordinarily worrying. I am really happy to have found the Legal Beagles and thank you kindly for this resource!

The probate company should have placed an advertisement in the London Gazette. This would have protected you as EXECUTOR.
If they did not, and DWP claim the overpayment from you, you may have a claim against the probate company.

However DWP are requesting repayment from you and your sister as beneficiaries.They are following the money.
You can dispute your liability to repay this money with a claim of change of condition.
Basically this means you have spent the money, and so it is no longer available.
However what one has spent it on is important. If it was spent on repaying debt, it won't count.
You need to show the money has gone on something you would not, eg normally buy. Perhaps a cruise?

If your sister has spent her share so it is not recoverable she should not enter into an arrangement with DWP.

It is unlikely that DwP have miscalculated the amount owing, their mistakes tend to be in my experience to do with correct procedures.
You have identified the reason for the alleged overpayment, so there is probably little value in pursuing that line as it will only cause more stress and work.