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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10190
Experience:  Barrister 17 years experience
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Madam, My Father died recently, and I am Joint

Customer Question

Dear Sir/Madam,
My Father died recently, and I am Joint Executor with the company that prepared his Will. I am sole beneficiary, along with my two children. There are no other relatives.
My Father had an IVA in force at the time of his death, and originally the debt was some £60k. This deemed the estate "insolvent" - and I discovered that my Father's wishes could not fulfilled, and no monies would be allowed to me and my children, but that the IVA company would be awarded the balance of any net equity left from the estate.
However I put in an appeal to the IVA company (independently from my own solicitor acting for me - as I could not afford for them to be involved in any litigation with the IVA company on my behalf). Because of my own personal circumstances, I appealed on the basis of two elements that my Father was not aware of the implications of dying during an IVA (not in their terms and conditions), and secondly, that he believed he was taking care of his grandchildren who suffer from mental health disabilities, and for their future care in the event of his death. Also pointing out they did not give my Father good advice about taking out an insurance to protect himself against death during the IVA (again, no advice was forthcoming to him). My appeal was also on the grounds of our impending homelessness, being in receipt of a Section 21 from our private landlord, with no council houses being offered, and that I am currently on benefits.
I put in an offer to the IVA company of 50% of the Net Equity (after all expenses have been paid from the estate), and found out today after a Variation Meeting, that my offer has been accepted after a very hard battle, and with all my personal circumstances during what is an extremely upsetting and challenging time. Whilst elated, I discovered something very concerning regarding that award.
My understanding is, that if I was unsuccessful today in my Appeal, then the IVA company would have had the remaining net equity of £34k from the estate, and I would receive nothing but my expenses. However, now I am to receive 50% of that net equity which is being confirmed within 4 days, direct from the Insolvency Company.
I was disturbed to find out that my joint executor has dictated, that I should leave my 50% award with my solicitors until the end of the probate period (February), in case there are any future claims on the estate. I was horrified as you can imagine, because this was my own personal battle with the IVA company, not something that my solicitors were involved with. Potentially, this means that I have no way of protecting my 50% payout, let alone receive ANY of the funds without signing a disclaimer - potentially meaning if I take the money BEFORE end of probate (February), that I stand to be responsible for any claimants against the estate after all expenses have been paid!
I cannot believe that there isn't a "legal means" for me to be able to receive this award, without theoretically having to put it straight back into the estate as seemingly, "EQUITY" which I have inadvertently created! This was my challenge, and my battle, and I have been awarded this on "compassionate grounds" by the Insolvency Company. I have no wish to sign any disclaimer, as I don't feel that this award should now be treated as clear equity. Without this, there would be nothing left in the estate anyway, as it was insolvent before my Appeal.
Is there any advice you can offer me as a way to either protect this award, or a way of avoiding having to sign any "disclaimer" which then makes me responsible prior to end of probate, for any claimants to the estate - should I wish to be paid the 50% award in full before end of probate?
I'm adamant that this disclaimer should not apply to this unusual case of an award, but it seems that my advisers think otherwise!
I would appreciate it if you could offer me some advice, and whether there is a way to be paid this award without having it treated as "available equity". Horrifying scenario as you can imagine after everything I had to do to win my appeal.
Thank you.
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. The first thing you need to realise here is that your joint executor and solicitors and advisers, as you call them, are involved in what is known in the legal trade as CYA - Cover your ass. Here, the only people who potentially have a liability should some fresh creditor turn up are the executors, the solicitor advising the estate and anyone else advising the estate. So, they have effectively decided to cut you off at the knees in order that they safeguard their own position.
Expert:  Buachaill replied 1 year ago.
2. The second point to be aware of here, is that not only has any share of the net equity your receive, but also the 50% of the net equity the IVA company receive has to await the expiry of the probate period, before it can be given out. So, insist that the IVA monies remain in the kitty until the probate period has expired.
Expert:  Buachaill replied 1 year ago.
3. The third point you need to be aware of here, is that there are detailed legislative provisions dealing with insolvent estates. Even if these monies are paid out, yourself and the other joint executor - the will company - would bear a joint and several liability for any subsequent creditors who might turn up. So all the will company are doing here is to place all the liability on your, rather than bearing part of it themselves.
4. Finally, until the statutory period for insolvent estates has expired, no one, not even you, can lawfully claim monies in your father's insolvent estate.

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