Free Advice Column - 18/02/2009
18 Feb 2009
Short changed by executors
Q. A relative died some time ago leaving several substantial bequests to family, charities and so on. Since the estate included a business and property probate was protracted, but I have now been informed that there were only sufficient assets to pay out 50% of any bequest. However I know that at least one monetary bequest was paid out in full. Is it possible for me to find out how the calculations were arrived at and what was paid to each beneficiary?
A. The residuary beneficiaries – those who divide the remainder once specific gifts and tax and expenses have been paid out – normally bear the liabilities of the estate. But if the residue is not sufficient to meet the estate liabilities they will be paid out of the cash and assets which would otherwise have funded any legacies contained in the will. Where this occurs pecuniary legacies (gifts of money) would be reduced proportionately in order to leave funds available for paying the estate's bills. If you have evidence that a pecuniary legatee has not suffered a reduction you should ask the executors to show you the accounts. If they fail to do that, you could force them to produce the accounts in court. If they have not followed the strict rules that apply in these cases you could then sue them for your rightful share.
Cupboard was bare
Q. My son borrowed my father's life savings of £10,000 shortly before he died. My brother and I were each to have received half the money, but my son, who's currently on benefits, has been unable to pay back the loan. My brother says he wants his share, and the legal executor won't release the money from the sale of my father's house until it's paid back. She says that I, as one of the executors, should be trying to get it from my son. Is she right to withhold the money like this?
A. If your son has no money or assets it's pointless pursuing the debt. It would appear you have reached a stalemate. There seems to be no reason for the executor to delay winding up the estate; if necessary the debt can be assigned to your brother in case there's an improvement in your son's fortunes. If you and your brother are both executors you can probably overrule the legal executor and insist that the estate is distributed at this stage.
Chucking wood
Q. There is probably more friction caused among neighbours over garden trees and bushes than anything else. Several years ago I put a chain link fence around my garden, and cut off branches of shrubs and bushes coming over from my neighbours' gardens with no objection from them. However recently I had to cut off branches on their side of the fence, and I threw all the cuttings into my neighbour's garden, which has caused a dispute. Can you tell me if I acted correctly?
A. You shouldn't have reached over into your neighbour's property to cut off the branches: you're only allowed to prune trees and bushes back to the boundary. And while you're correct that, according to the letter of the law, the cut branches belong to your neighbour, since they're from his trees, it would have been more diplomatic to ask if he wanted the cuttings rather than just chucking them in his garden.
Never never
Q. The bank has repossessed my house, but I will still owe them money when they've sold it. I also have credit card and personal loan debts. Friends have suggested that I declare myself bankrupt rather than burden myself with debt for the rest of my life. I realise this would mean I would never get credit again, but is it a good option?
A. Bankruptcy generally only lasts for one year, after which you could potentially walk away from your debts without paying anything. It's possible you would be ordered to pay your creditors an amount each month for up to three years. Since your record is already poor your prospects of further credit will be severely limited whether or not you go bankrupt. I suggest you contact the Citizens Advice Bureau's debt counselling service to look at your finances in detail.
Q. A relative died some time ago leaving several substantial bequests to family, charities and so on. Since the estate included a business and property probate was protracted, but I have now been informed that there were only sufficient assets to pay out 50% of any bequest. However I know that at least one monetary bequest was paid out in full. Is it possible for me to find out how the calculations were arrived at and what was paid to each beneficiary?
A. The residuary beneficiaries – those who divide the remainder once specific gifts and tax and expenses have been paid out – normally bear the liabilities of the estate. But if the residue is not sufficient to meet the estate liabilities they will be paid out of the cash and assets which would otherwise have funded any legacies contained in the will. Where this occurs pecuniary legacies (gifts of money) would be reduced proportionately in order to leave funds available for paying the estate's bills. If you have evidence that a pecuniary legatee has not suffered a reduction you should ask the executors to show you the accounts. If they fail to do that, you could force them to produce the accounts in court. If they have not followed the strict rules that apply in these cases you could then sue them for your rightful share.
Spreading damp
Q. Eighteen months ago we had a conservatory built and were given a ten-year guarantee. Last winter a damp patch appeared and spread all over the wall. The firm came back several times but the damp has just got worse, coming through inside the house. Now they say they have run out of ideas and refuse to return.
A. At this stage you should contact a reputable builder to see if they can come up with a solution. Assuming this is possible you can ask the conservatory firm to foot the bill for the work required. You shouldn't have any great difficulty suing them for the cost of the repairs if necessary, although you'll have to hope the conservatory firm is still in business when the time comes.
Cupboard was bare
Q. My son borrowed my father's life savings of £10,000 shortly before he died. My brother and I were each to have received half the money, but my son, who's currently on benefits, has been unable to pay back the loan. My brother says he wants his share, and the legal executor won't release the money from the sale of my father's house until it's paid back. She says that I, as one of the executors, should be trying to get it from my son. Is she right to withhold the money like this?
A. If your son has no money or assets it's pointless pursuing the debt. It would appear you have reached a stalemate. There seems to be no reason for the executor to delay winding up the estate; if necessary the debt can be assigned to your brother in case there's an improvement in your son's fortunes. If you and your brother are both executors you can probably overrule the legal executor and insist that the estate is distributed at this stage.
Chucking wood
Q. There is probably more friction caused among neighbours over garden trees and bushes than anything else. Several years ago I put a chain link fence around my garden, and cut off branches of shrubs and bushes coming over from my neighbours' gardens with no objection from them. However recently I had to cut off branches on their side of the fence, and I threw all the cuttings into my neighbour's garden, which has caused a dispute. Can you tell me if I acted correctly?
A. You shouldn't have reached over into your neighbour's property to cut off the branches: you're only allowed to prune trees and bushes back to the boundary. And while you're correct that, according to the letter of the law, the cut branches belong to your neighbour, since they're from his trees, it would have been more diplomatic to ask if he wanted the cuttings rather than just chucking them in his garden.
Never never
Q. The bank has repossessed my house, but I will still owe them money when they've sold it. I also have credit card and personal loan debts. Friends have suggested that I declare myself bankrupt rather than burden myself with debt for the rest of my life. I realise this would mean I would never get credit again, but is it a good option?
A. Bankruptcy generally only lasts for one year, after which you could potentially walk away from your debts without paying anything. It's possible you would be ordered to pay your creditors an amount each month for up to three years. Since your record is already poor your prospects of further credit will be severely limited whether or not you go bankrupt. I suggest you contact the Citizens Advice Bureau's debt counselling service to look at your finances in detail.
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