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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9335
Experience:  I have been practising for 30 years.
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My mother died intestate in 2007 leaving a small net estate

Customer Question

My mother died intestate in 2007 leaving a small net estate of £9,169. Whilst acting as the administrator I discovered £6,829 had been miss appropriated from her bank account by, I believe, my brother; for instance a women who could not walk to the end of the road suddenly started flying and at aged 72 whilst in a nursing home she suddenly discovered a penchant for male bondage gear (allegedly!). When I asked my brother for an explanation he refused to discuss the matter at all. A result of this is that, as administrator I don't feel that I can finalise the accounts and have therefore refused to release any monies to him until he has given me a plausible explanation as to the events. He has now instructed a solicitor. I am correct in requesting an answer from my brother? And, if I am correct, how much should he receive? My brother and I are the only children and there is no possibility of him being able to "pay back" the outstanding amount prior to a settlement. Finally, in most civil cases, there is the 6 year statute of limitations, does this apply here? I do believe that he is entitled to something but I want him to admit that he did have his hands in Mum's accounts.
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

If the brother has had his hands in the till, there is no statute of limitation on a criminal offence.

It applies to contract and negligence (6 years) but not any criminal activity or theft which this is.

You would be not able to pursue civil claim through the courts therefore but you and be able to pursue this via the police. The police are going to need firm evidence that he did misappropriate this money.

Contested probate is not cheap and I hope that your brother has plenty of money if he’s going to instruct solicitors to deal with this for him so don’t be at all surprised if this is just an initial letter to try to frighten you off. If he can’t pay back the money, he is unlikely to be able to pay £200 per hour or thereabouts that a solicitor would charge for a protracted matter.

For an estate of this size, the whole of the funds could easily be gobbled up in legal costs.

Can I clarify anything for you?

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Best wishes.

FES.

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Customer: replied 1 year ago.
FES: Thank you for your prompt response. I Understand the points that you are raising concerning costs etc and that if I have evidence, I believe that I do, I should go to the police. But, to clarify, as the representative of my mother, was / am I correct in not finalising the accounts until I am satisfied that all reasonable amounts outstanding have been accounted for? Many thanks for your help. As an aside, aren't families just great!
Customer: replied 12 months ago.
Please clarify that as the administrator I am correct in not releasing the estate until I have gathered all the monies due in to it. As it is my brother, the only other claimant, who has not passed over these monies or even answered any queries, is / was this the correct thing to do?
Regards,
Pete Slater
Expert:  F E Smith replied 12 months ago.

You need to be careful if you are not releasing all the money. If you think there may be debts to be paid or other liabilities, you might want to consider making an interim distribution whereby you release, say, 50% or 75% or a figure like that of the bequests pending the final totting up.

If your brother is one of the beneficiaries, it would not be unreasonable to hold his share back in total pending the investigation of alleged theft.