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Estate settled - paid out - solicitor asking for money back!

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  • Estate settled - paid out - solicitor asking for money back!

    My mum died two years ago and her partner, with whom she had been living for several decades died very shortly after. They had wills leaving everything to each other and thence to the children of both parties. My two sisters and myself were beneficiaries on Mum' side and one of them was appointed as one of two executors. There were five beneficiaries on Mum's partner's side, one of whom was also appointed as a second executor. The settlement of the estate was handled by a local (to Mum) solicitor and consisted of cash assets, bank accounts, a few shares and a recently matured ISA.
    It all seemed fairly straightforward but it took some six months for everything to be settled. The executors duly received the money and it was distributed evenly between the beneficiaries. It was all very amicable.
    Now, the executors have over the last twelve months received a couple of letters from the solicitor asking for some £500 to be paid back to him from each beneficiary due to a 'miscalculation' on his part. To date, these letters have been ignored. I have no way of knowing if this is true, and even if it is, is he within his rights to ask for a repayment?
    The latest request arrived a couple of weeks ago. I haven't seen it yet but I've asked for a photocopy, hence I'm in the dark as to the exact contents and wording.
    Where do we stand on this? I think there is a breakdown of the assets somewhere but I don't have that document right now, it's with one of the executors. Where do the assets go while the estate is being settled, does it go into the solicitor's account, or a 'holding' account of some kind? And what about the interest accrued, does that form part of the estate or does the solicitor get to keep that?
    I'm not sure what information we are entitled to ask for in order to be able to check the figures and decide whether this is a legitimate claim or whether he's just trying it on because he feels he's out of pocket somehow. What should be our next move?
    Any advice gratefully received. Thanks!
    Tags: None

  • #2
    Re: Estate settled - paid out - solicitor asking for money back!

    You should be requesting a complete breakdown of the figures with supporting documentation, and an explanation.
    If a error has occurred it would IMO be reasonable to attempt to correct it, but it would depend on all circumstances and the beneficiaries current position vis a vis their legacy

    Comment


    • #3
      Re: Estate settled - paid out - solicitor asking for money back!

      Originally posted by des8 View Post
      You should be requesting a complete breakdown of the figures with supporting documentation, and an explanation.
      If a error has occurred it would IMO be reasonable to attempt to correct it, but it would depend on all circumstances and the beneficiaries current position vis a vis their legacy
      Thank you for the reply, it is much appreciated. I want to be reasonable about this and the solicitor took a healthy sum for his efforts considering the estate was fairly modest.
      Hope you don't mind a couple of questions...

      What should I expect to see in a 'complete breakdown of the figures', a roll-up of all the assets and charges for the solicitor's services resulting in a sum to be distributed? How detailed should I expect it to be?
      What 'supporting documentation' can I expect to see?
      Should it show any interest on the assets account while it was being rolled-up and prepared for settlement?

      Lastly, I was wondering where we stand if:
      Not all the beneficiaries agree to pay it back
      Some or all of the beneficiaries have spent the money.

      Comment


      • #4
        Re: Estate settled - paid out - solicitor asking for money back!

        The executors should be given sufficient detail and explanation to show where the error occurred.
        I would expect a full accounting which will list the assets, show interest earned (if any) and all disbursements.
        If they are not happy with the response ask for a further detailed account, showing a breakdown of his charges.

        If it is a reasonable request the executors could proceed against any beneficiary who refused to comply. Whether it is worth it for £500 is another matter!
        If the money is no longer with the beneficiary, ie he has spent it and it is irrecoverable, he would have a defence of changed position

        Comment


        • #5
          Re: Estate settled - paid out - solicitor asking for money back!

          Originally posted by jhiker View Post
          My mum died two years ago and her partner, with whom she had been living for several decades died very shortly after. They had wills leaving everything to each other and thence to the children of both parties. My two sisters and myself were beneficiaries on Mum' side and one of them was appointed as one of two executors. There were five beneficiaries on Mum's partner's side, one of whom was also appointed as a second executor. The settlement of the estate was handled by a local (to Mum) solicitor and consisted of cash assets, bank accounts, a few shares and a recently matured ISA.
          It all seemed fairly straightforward but it took some six months for everything to be settled. The executors duly received the money and it was distributed evenly between the beneficiaries. It was all very amicable.
          Now, the executors have over the last twelve months received a couple of letters from the solicitor asking for some £500 to be paid back to him from each beneficiary due to a 'miscalculation' on his part. To date, these letters have been ignored. I have no way of knowing if this is true, and even if it is, is he within his rights to ask for a repayment?
          The latest request arrived a couple of weeks ago. I haven't seen it yet but I've asked for a photocopy, hence I'm in the dark as to the exact contents and wording.
          Where do we stand on this? I think there is a breakdown of the assets somewhere but I don't have that document right now, it's with one of the executors. Where do the assets go while the estate is being settled, does it go into the solicitor's account, or a 'holding' account of some kind? And what about the interest accrued, does that form part of the estate or does the solicitor get to keep that?
          I'm not sure what information we are entitled to ask for in order to be able to check the figures and decide whether this is a legitimate claim or whether he's just trying it on because he feels he's out of pocket somehow. What should be our next move?
          Any advice gratefully received. Thanks!
          If the solicitor had made errors which have cost the estate then the solicitor cannot claim against those errors as they owe to his mistakes. The solicitor has to provide reasonable legal services, what this means if the standard must be the same as another solicitor or solicitor's company as though he/ she/ the company were in your solicitor's shoes (reasonable solicitor standard).

          Comment


          • #6
            Re: Estate settled - paid out - solicitor asking for money back!

            If a simple miscalculation has caused an over payment to a beneficiary the solicitors have every right to try and recoup the money.
            The beneficiary has the right to dispute the claim.
            Find out what has occurred first.

            Comment


            • #7
              Re: Estate settled - paid out - solicitor asking for money back!

              Originally posted by des8 View Post
              If a simple miscalculation has caused an over payment to a beneficiary the solicitors have every right to try and recoup the money.
              The beneficiary has the right to dispute the claim.
              Find out what has occurred first.
              If the money has been mixed in a bank account with their own money, there is no way of knowing whose money is whose at common law, unless the executors or beneficiaries imprudently volunteer their bank statements. The bank will not provide the solicitor with their bank accounts as it owes a special duty to its bank customers.

              Comment


              • #8
                Re: Estate settled - paid out - solicitor asking for money back!

                I have a little more information having seen photographs of the latest documents this morning. Seven beneficiaries not eight as I said in my OP.

                It seems the original accounts were overstated in the 'Personalty' section thus the amount to be distributed was apparently in error.
                The solicitor says '..we previously wrongly stated the amounts in the balances received from Halifax plc by £xxxx' - I haven't seen a copy of the original accounts but I will verify this. There was a Halifax bond and two bank accounts.

                In the 'Liabilities' section there's £2650 deducted for 'Administration legal costs. That's the solicitor's fee - is that right?

                He goes on to say 'The net result is that we haven't received anything for the work on the Estate. We are out-of-pocket by £xxxx.
                Would he not have had insurance to cover his mistake?

                The beneficiaries accepted the legacies in good faith. Is he entitled to take legal proceedings to recover the money and, if it goes that far, would proceedings be aimed at each beneficiary or the two executors only?

                If some or all of the beneficiaries decided to claim 'change of position' would they be required to prove somehow that the money was spent before the notice of over payment. I don't know how you would even do that.

                Comment


                • #9
                  Re: Estate settled - paid out - solicitor asking for money back!

                  So it is looking like a simple error, possibly transcription.
                  A mistake has occurred, and whilst the executor & beneficiaries are not at fault in any way at all, neither should they benefit by another's error.
                  If proceedings were instituted the claimant could follow the money,and sue all parties who benefited from this "windfall"
                  The underlying legal position is that when someone receives something in error, they have a duty to return it
                  If the money has been spent, and is irrecoverable, the recipient has a defence.
                  "spent & irrecoverable" eg on a car, or furniture or holiday etc. Paying off a mortgage or loan would not necessarily qualify if a replacement mortgage or loan could be taken out.

                  The solicitors might well have insurance cover, but if their insurers payout those insurers could then pursue the beneficiaries.

                  http://www.express.co.uk/finance/cru...ayment-blunder

                  Comment


                  • #10
                    Re: Estate settled - paid out - solicitor asking for money back!

                    Originally posted by des8 View Post
                    So it is looking like a simple error, possibly transcription.
                    A mistake has occurred, and whilst the executor & beneficiaries are not at fault in any way at all, neither should they benefit by another's error.
                    If proceedings were instituted the claimant could follow the money,and sue all parties who benefited from this "windfall"
                    The underlying legal position is that when someone receives something in error, they have a duty to return it
                    If the money has been spent, and is irrecoverable, the recipient has a defence.
                    "spent & irrecoverable" eg on a car, or furniture or holiday etc. Paying off a mortgage or loan would not necessarily qualify if a replacement mortgage or loan could be taken out.

                    The solicitors might well have insurance cover, but if their insurers payout those insurers could then pursue the beneficiaries.

                    http://www.express.co.uk/finance/cru...ayment-blunder
                    They can't follow money if the money has been mixed into the person's bank account.. that's the law....it's a costly exercise too. It's called 'tracing'

                    Comment


                    • #11
                      Re: Estate settled - paid out - solicitor asking for money back!

                      Sorry to have to disagree with such an erudite poster but IMO there is a fiduciary relationship between the solicitor and client, which sets up the required relationship to allow for equitable tracing.

                      - - - Updated - - -

                      Sorry to have to disagree with such an erudite poster but IMO there is a fiduciary relationship between the solicitor and client, which sets up the required relationship to allow for equitable tracing.
                      Not that they will necessarily avail themselves of such a remedy.

                      Comment


                      • #12
                        Re: Estate settled - paid out - solicitor asking for money back!

                        Originally posted by des8 View Post
                        Sorry to have to disagree with such an erudite poster but IMO there is a fiduciary relationship between the solicitor and client, which sets up the required relationship to allow for equitable tracing.

                        - - - Updated - - -

                        Sorry to have to disagree with such an erudite poster but IMO there is a fiduciary relationship between the solicitor and client, which sets up the required relationship to allow for equitable tracing.
                        Not that they will necessarily avail themselves of such a remedy.
                        Update: Actually, Des8 I don't know if what am going to say is common law per se but I have certainly come across it in, I believe were, property law journals so regardless it's still a cogent argument. I am not quite certain of this mind, but I do believe where there's a relationship of trust that the tracing remedy for mixed funds is an actual remedy at common law not just an equitable tracing remedy. If this were the case the remedy is even more watertight than the ambiguity of equity. It makes sense too, I know I have come across it, but I can't quite remember if I read the principle in a case or just legal commentary.

                        [Tracing for mixed funds is not available at common law as the funds have changed from identifiable to un-identifiable, ie mixed. However, equity may step in albeit equity is merely discretionary where common law is a legal remedy. If equity were to step in in the op's case it is discretionary and whilst a relationship of trust would avail the equitable tracing remedy it will still not be cheap. However, for that matter am not remotely suggesting that the Op should keep the money from the lawyer, am just merely discussing relevant issues and remedies.]
                        Last edited by Openlaw15; 19th May 2016, 16:58:PM.

                        Comment


                        • #13
                          Re: Estate settled - paid out - solicitor asking for money back!

                          This is all very enlightening, thanks!
                          If a voluntary refund is the ultimate outcome would the two executors be expected to cough up and then recover the contributions from the other beneficiaries or could the two executors insist the solicitor writes to all the beneficiaries separately?
                          Also, if comes to paying something back could we make a counter offer, say, half the amount?

                          Comment


                          • #14
                            Re: Estate settled - paid out - solicitor asking for money back!

                            You don't sound as if you are a dysfunctional family, so I would suggest you get together to discuss your way forward.
                            This will depend of course on each individuals position. Some may have disposed of the entirety of their legacy, whilst others still retain theirs.
                            Try and produce a united front and have one or two (the executors?) negotiate with the solicitors.
                            The solicitors aren't going to want to sue for the return of the overpaid legacies.
                            It won't do their reputation much good, and it will cost.
                            On the other hand you (collectively) have to be realistic (and fair) and appreciate that solicitors don't generally work for free.
                            IMO negotiation is the way to go, but of course it is your choice, and if the solicitors aren't prepared to cooperate...............

                            Comment


                            • #15
                              Re: Estate settled - paid out - solicitor asking for money back!

                              Thanks again. We will certainly discuss it - I just want to be clear on the legal and moral arguments.
                              If this is not resolved to the solicitor's satisfaction and legal action were to follow, would any action be against each separate beneficiary and not just the two executors. I mean to say the two executors won't be responsible for the entire overpayment. That might sound like daft question but I just want to be sure.
                              If any of the beneficiaries were to claim the legacy had been spent despite having a currently healthy bank balance could that be disputed? Could one be required to itemise one's expenditure?

                              Comment

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