I am hoping for some general pointers as I am straying into contentious work which I have very little experience of. I am dealing with an intestate estate. There are four beneficiaries, the deceased’s children. The main assets are a bank account and the property in which the deceased lived with one of his sons. The son is not on the title register. The son has managed to close the bank account without showing any grant/letters. The account contained about £25,000.00. The other children were surprised and upset when he refused to had the money over. Letters of administration in the name of the other three children have been obtained. The son is now refusing to move out of the deceased’s home and there is no prospect of reasoning with him I fear. My thoughts were to start eviction/possession proceedings (not sure of the term). Would this be possible and if so could the administrators deduct from the share the son is to receive (from the proceeds of sale) the monies he has obtained from the deceased’s bank account? Also would the cost of any proceedings be a liability of the estate or could the administrators deduct this from the son’s share of the estate? Any guidance would be appreciated.
It sounds very straightforward but you need to be aware that the resident son may raise defences, either based on proprietary estoppel or as part of a claim under Inheritance (PFD) Act 1975. I believe that the normal litigation practice nowadays is to write a detailed letter before action to the son, to try and get him to consult lawyers who will reply with any reasons which he thinks justifies his remaining in occupation. This should get the issues out in the open before the administrators incur the expense of bringing proceedings. If he doesn’t respond and proceedings are issued and he then tries to raise a defence he will be at some risk as to costs
The costs of an action for possession are in the discretion of the court dealing with the case and if it is a simple as appears at first sight then there will be an order for costs against the son, which can be recouped out of his share. That may not represent the full costs of the case, and any balance is an administration expense.
The money the son has received from the bank could be recouped in the same way but I think the administrators should give serious consideration to claiming the balance of accounts from the bank which has paid out wrongfully to the son in occupation- bearing in mind that unlike an executor, an administrator has no power until a grant is issued. The bank will protest but they should be told firmly that it’s their own fault and they will have to try and recover the money from the son they have misguidedly paid it to. This may usefully put him under a bit more pressure.
I suspect that the bank is either Lloyds or one of their subsidiaries who have in the past couple of years been very free with their deceased customers’ money before a grant is issued; often it’s very convenient for individual clients but it’s a bad practice and should be discouraged.
I suggest the starting point is the basis upon which the son occupies the property.
If he was a licensee at will during his father’s lifetime, then his status is unlikely to have changed, and this can be terminated and an eviction order sought.
Normally, the personal representatives would seek an indemnity for the costs associated with any eviction of a beneficiary from the other beneficiaries entitled. In this case, as the other beneficiaries are the personal representatives, there is no real need for them to indemnify themselves.
The court will award costs, as it considers appropriate. If the eviction application is successful, the court will direct how much of the personal representatives’ costs can be recovered from the defendant son. This will likely be on the standard basis, meaning recovery will probably be no more than two-thirds of the costs incurred. If the son successfully defends the claim for possession, the personal representatives will be liable for some of his costs, as well as their own. As the personal representatives will be taking action against a beneficiary, to the extent they are liable for costs they are “personal” and cannot be deducted from the estate before division (otherwise the defendant will effectively be paying more costs than directed by the court).
With regard to the assets the son has already obtained from the estate, I see no reason why distributions from the estate should not reflect these “advance payments”, with his share being reduced to reflect them. There may need to be further negotiation to agree the amount of the deductions.