Can DWP claim an overpayment from an estate when there is only a house

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Iona, you have a solicitor involved so make him/her work for their fees, YOU instruct them what you want done heed their advice but if you believe that more needs to done insist that is actioned.

Ahh if only, it seems the solicitor is only working for the executors, I am the residuary beneficiary and not the client. The solicitor will not in fact do anything for me, conflict of interest I am told so I have to instruct yet another solicitor to act for me. I am not entirely sure why there is a conflict of interest or even how but it seems there is??

[enaid]

Re: Can DWP claim an overpayment from an estate when there is only a house

Sadly MissFM I think you are right, the sol is working for the estate.

[MissFM]

Re: Can DWP claim an overpayment from an estate when there is only a house

Iona, you have a solicitor involved so make him/her work for their fees, YOU instruct them what you want done heed their advice but if you believe that more needs to done insist that is actioned.

Nemesis - if you are correct in your assumption that the "involved" solicitor is acting on the behalf of the OP entirely in her interests then I agree with you absolutely.

...but it's my understanding (maybe Iona will clarify) that the solicitor she mentions is not acting for her but for interests that may well conflict with hers (eg the Executor - the solicitor's own interests, having cocked up the Will of the deceased mother...)

I also feel very annoyed with the solicitor who wrote the will for her, my mother would not listen to me I was only her daughter, but she would have listened to him as she saw him as someone of authority and if he had explained to her that she could not leave money she did not have she would instantly have believed him. I cannot understand why he did not try to find out what her assets actually were before listening to all her nonsense about leaving large legacies to charities.

If anyone can give me any answers it would be much appreciated, under the circumstances finding money to pay yet more legal fees for help to sort this out is not an option right now.

It is more of a problem because I am not the executor, this is one of my mothers fairweather friends hanging in there because of the legacy!! Not around for the 5 years of fees of course. But to discharge the executors I need to accept liability for any DWP repayment no matter how large.

I am well aware of the fact that in all this his only concern is for himself as the executor and what he gets out of it all. But I don't want to sell the house and I just want to know if what he is saying is right. Can DWP force the sale of the house to recover what they consider to be an overpayment even when I am prepared to take full responsibility for the debt and in doing so discharge the executors.

all of which would suggest that she is neither in a position to instruct, nor to trust, the solicitor "involved".

Needless to say, I hope very much that you're right and I'm wrong on this x

[nemesis45]

Re: Can DWP claim an overpayment from an estate when there is only a house

Iona, you have a solicitor involved so make him/her work for their fees, YOU instruct them what you want done heed their advice but if you believe that more needs to done insist that is actioned.

[MissFM]

Re: Can DWP claim an overpayment from an estate when there is only a house

A couple of further thoughts in case it's of any help:

- You could contest the Will if you believe your mother didn't have mental capacity or was unduly influenced http://www.scottishwillservices.co.uk/contested.html (this would most likely be both expensive and harrowing)

- It's probably worth contacting Ageuk - even if they can't advise after decease they may be able to point you to free legal advice or further enlightenment on your situation
http://www.ageuk.org.uk/Documents/EN....pdf?dtrk=true

My other thought was concerning the family living in the house. If the child has a disability there are usually societies and resources connected with specific disabilities and many of these have free legal helplines - worth exploring?

Also (and I don't know how this would work, but others here might) - if you do have to sell the house, how about a local housing association buying it (or shared equity) and renting it back to the family with a secure tenancy?

HTH x

[enaid]

Re: Can DWP claim an overpayment from an estate when there is only a house

It's your decision, but I doubt I would be able to leave it until I was completely satisfied the DWP were correct, they do not always get it right.
My sister and I had a LPA with our dad and it did make things easier as he couldn't have dealt with his own finances.
I really hope you get a decent result when all this is eventually sorted, it's sad enough when you lose someone and things like this make it a lot harder to grieve in the way we should be able to.
I am sorry I myself could not be of more help to you, someone may pop along and be able to give you more and better advice.
Good Luck Enaid x

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

As far as I can see you need a full and proper breakdown of the care home charges, what exactly you were funding, what the state was funding and what if any benefits your mum was entitled to while in the Care Home. You need copies of the assessments as to finance and the assessments of personal and nursing care both funded differently. This may not be something you can obtain info on but the executor or the solicitor should be able to find out as he is acting for your mum and her best interests.

I have decided I am going to leave the solicitor and the executor to obtain whatever information they can get and then once they eventually come up with a figure I will work out a payment schedule with DWP. If that proves to be impossible then the house will have to be sold and the money that is left used to buy another house. It just seems a completely mad thing to have to do, to sell a suitable house I don't want to to sell to pay a debt I did not even know existed, to buy another house which is not suitable, especially when I am already having to pay her damd legacies, funeral and legal fees. Even if I learned little else from my parents and in laws there are a few major things I have learned and that is never ever leave your children to pick up the cost of your end of life care and don't leave any debts. Forget the legacies unless you are very wealthy because by the time the nursing home and government have had their share there will be nothing left. You may think what you have is a substantial sum but unless you are a millionaire it is a drop in the ocean by comparison with the cost of care. Finally DO get a Power of Attorney ready and waiting for your family so that they can deal with your finances and make decisions on your behalf. My mother would not make a PofA because she would not believe she could possibly ever lose the ability to make her own decisions and that belief got stronger the older and more confused and impossible she became. I am sorting all this well in advance I never want to put my family through what my husband and I have been through with our parents. The complete refusal of every one of them to even consider the possibility that they could end up losing their ability to care for themselves or make a decison was absolute, they had no insight whatsoever into their need to plan for such decision making. My husband and I both asked our parents to grant us PofA when we realised they were very soon going to be unable to care for themselves and we were treated as if we were mad, why would they need something like that? It's a short stay in Switzerland for me I think, if I still have the ability and the funds to get there by the time I have paid all these debts that I did not create. I would prefer to leave my family with happy memories and go quickly when I am ready rather than a relationship destroyed by many years of financial hardship trying to meet the cost of my care. Never never do I want to put my children through this.

[enaid]

Re: Can DWP claim an overpayment from an estate when there is only a house

As far as I can see you need a full and proper breakdown of the care home charges, what exactly you were funding, what the state was funding and what if any benefits your mum was entitled to while in the Care Home. You need copies of the assessments as to finance and the assessments of personal and nursing care both funded differently. This may not be something you can obtain info on but the executor or the solicitor should be able to find out as he is acting for your mum and her best interests.

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Thank you so much eveyone for your helpful replies. I am sorry my reply posts seem to be all over the place, I am not good at working out how to reply to individual posts and get the reply to fit in after the post.

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Yes that's great but what happens when you phone to tell them as I did and they won't speak to you because you are not the claimant. Even when you point out that the claimant cannot speak to them she is totally deaf, can't hear the sound of her own voice and is therefore losing the ability to speak and certainly can't hear them. Cannot understand what it is all about anyway and is never going to be sane enough to have a conversation with them about anything. Surely they should at the very least have listened and worked out what she was still entitled to. Anyway she is gone now and I just have to sort out the mess she has left behind. I spent my whole life doing that while she was alive, now it looks like I will still be doing so long after she is dead.

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Thanks for your reply, it is more complex too because I live in England and would have to make an appointment with a Solicitor in Scotland. Much as I loved my mother she was a very silly old woman and became more vulnerable to all forms of advertising and persuasion as she got older. She was totally taken in by charities asking for money to be left to them in her will and she would not listen to any of the family trying to expalin to her that she could not leave money she didn't actually have. I also feel very annoyed with the solicitor who wrote the will for her, my mother would not listen to me I was only her daughter, but she would have listened to him as she saw him as someone of authority and if he had explained to her that she could not leave money she did not have she would instantly have believed him. I cannot understand why he did not try to find out what her assets actually were before listening to all her nonsense about leaving large legacies to charities. She was nightmare to cope with and this is the result.

As for my salary becoming her income, this is even worse than I thought, I have already paid more than my fair share of tax on that income why in heavens name does it have to be taxed again because I paid a bill with it. I am losing the will to live here!!! I feel like this cat going nowhere fast.

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Thank you so much for taking the time to reply, as far as I know it was called attendance allowance or so I have been told tonight by the executor. If I can find out how much that was then I can work out an approximate amount that I will be due to repay. But I don't know anything about how much the Pension Credit would have been, so that will add to this I expect.

I just cannot understand how so many people from government departments were involved in making arrangements for payment of her personal and nursing care and not one of them ever said this would change the amount she received from DWP. This is so wrong, I am now left with the bill for people not doing their job properly. They didn't need to discuss it with me but surely the social work department managing this could have notified DWP.

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Thanks that is helpful, the problem was that I could not find out what her payment was it was just a one of payment she received and DWP would not tell me. They never even mentioned she may be getting something she was no longer entitled to. I still don't even know how much that attendance allowance was, if I could find that out at least that would give me a more accurate indication of the total they are saying was overpaid. What I don't understand is why they kept paying it.

[MissFM]

Re: Can DWP claim an overpayment from an estate when there is only a house

Iona, FWIW I really feel for you and am so sorry that on top of your bereavement you have this huge injustice.

Reading your posts, I think that it's possible that both the rent from the house and your personal financial contributions to your late mother's care home fees have been classed retrospectively as income, hence affecting what she would have been entitled to in benefits.

Without seeing the terms of her will it's impossible to say whether or not you can keep the house. You say that she left many generous bequests but had no capital other than her equity in the house. Depending on whether she had left you the house with any residual capital to be shared between other beneficiaries, or whether she left fixed sums to various people, or left sums as a proportion of her overall Estate...it's complex, isn't it?

In your shoes I would book a session with an accountant and/or solicitor well versed in these matters to try to untangle the cat's cradle.

I think you may be a victim of you own desire to be generous and to do the right thing.

Wishing you the very best of luck in sorting this x

[anmarj]

Re: Can DWP claim an overpayment from an estate when there is only a house

there will be an overpayment of the DLA Care component, this is because of the funding status is different in Scotland and England, if she had been in England and fully self funding ie no help from state then she would of been entitled to the DLA Care component. In Scotland because of the help, then DLA Care is not payable. DLA Mobilty is still payable in care home. This can cause confusion

There may be an overpayment of Pension Credit, there may of been a premium on the Pension Credit called Extra amount for severe disability and that would of stopped when the DLA care would of stopped, and because of the property; the value of the house would be taken into account as capital this may of extinguished the entitlement to Pension Credit. Social Services when working out the contribuiton should of been aware that the PC should of been stopped/adjusted and done their calculation accordingly. The executor should get a breakdown of the overpayment for both.

Due to data protection the various departments cannot talk to each other, the same way that they would not disclose any benefit details to you when you called unless you were registered as the appointee or Power of Attorney. It is about safeguarding information in the same way that you would expect them not to disclose your details to anybody who called up and asked them for it. If your mum was not able to handle her affairs then the DWP could of made you an appointee for benefit purpose, but that is neither here or there.

If there is a recoverable overpayment, then it does not have to be paid in one lump sum but arrangements can be made, but they will contact the executor about this.

Life is never fair, and if you don't agree with how the government decide that, then speak to your MP, after all they often vote on such matters.