A mess with dad's estate

[mrsbitaly]

My dad didn't seem to have much of an estate and as no will could be found, we went ahead with the funeral and cleared his home.
A digital copy of his will has now been found and given by his ex wife.
The executors are my brother and my dad's friend.
It's been found via messages and an account that he's been loaning them large amounts of money ie £30000 one time £8000 along with smaller amounts. All via texts say its an agreement to pay back. We do feel that his friend took advantage of him as she even states not to tell anyone.
The will does not leave her anything she's just an executor.
The question is can this even be claimed back now? Is this classed as part of his estate to be paid back?
I don't know where to start as my dad was secretive about banks as he was hiding money during his divorce so we think he was distributing as a loan.
I can't see a way of just locating all of his accounts.
Should this person still be an executor as they owe a large sum of the estate.
We are not in a position to spend thousands going to court.
We don't know what to do its such a mess

Is it just the friend that was loaned money, or your brother too?

Hi it was just the friend not my brother

Similar happened to a friend of mine. First, you need legal advice about getting the 'friend' removed as executor of the estate because there's a clear conflict of interest (I think the term for the application is 'personal interest'). This would then leave your brother as sole executor as you have the text messages to support what you're saying.

Your brother could then make a claim for repayment of the loan(s), but in his capacity as personal representative of your dad's estate. Some/most solicitors can come to some arrangement for the estate to meet the fees after probate and the legal stuff is sorted out. Obviously if you win, the friend has to pay your costs (but it won't be all of the costs). As far as I remember, the burden of proof is on the friend to somehow prove the loans weren't gifts, especially in light of the texts you have.

Cases like this can get expensive, but realistically if you have clear evidence of a loan, and she doesn't have any evidence that he considered the money a gift/the loans forgiven before he died, then it probably won't get anywhere near court and you'll come to a repayment agreement long before that stage. But get some decent legal advice first.

Thank you. We were going to dismiss the money but i think it's a matter of principle now, particularly as he was begging them to pay it back as he was short of money. I appreciate your guidance

That’s so sad. But she can only pay back what she has so you need to be practical as well. Don’t cripple yourself financially on principle.

A woman here had a good case against a relative who had forged a will and stolen all the parent’s estate. Sadly after fifteen or more years of legal proceedings she got nowhere and it ruined her.

I hope it goes well for you, it's not a small amount of money! Feel free to PM me anytime, as my friend's case was almost identical circumstances.

Sorry for the loss of your DF. How was his health at the time all this was happening? Was he in sound mind or was he vulnerable? I'm just wondering whether there could have been an element of financial abuse that has taken place? Especially your comment that he was begging them to pay it back. I dont know if anything could be done now that he has passed away but perhaps it's worth seeing if you can find some information online?

I'm sorry for the loss of your father, and for the way things have now become so complicated.

In your OP you said "A digital copy of his will has now been found and given by his ex wife."

Do you mean she has the original will, signed and witnessed in wet ink, and she has scanned and sent it? Or has she found a digital file with a copy of his will in it? From my experience (although IANAL), a scan of a will is of no value unless you can produce the original hardcopy document - without that paper copy the rules of intestacy will apply.

If that is the case then in some respects it makes your life easier as the "friend" has no authority and does not need removing as an executor (because there ARE no executors because there is no will to execute).

Regarding the loans your father made to the "friend", that's a separate issue and independent of whether there is a will. Instinctively if there's a trail saying they were a loan then they should be repaid to the estate - but (once you've established who's managing that) I'd be inclined to take an hour of legal advice to clarify things. In particular, what the administrators are required to do in the event that the debtor cannot pay.

I hope you can resolve it and keep relations good with your brother. Dealing with these things is hard.

Just adding, actually if the Ex does not have the original will and you have not and cannot find it, you might also want advice on what steps you need to take to before moving forward with intestacy such that you/your brother are not exposed should the original will subsequently be found.

You definitely need some legal advice, and to keep costs down I would then (assuming the "friend" doesn't agree to repay the loan) push the matter to a mediation, which is a significantly cheaper way of resolving such disputes than litigating them.

But to answer your question: yes a loan made by the deceased can be called in by the executors of their estate.

And re the original will. There is a national register of wills, which testators can lodge their wills with. Find out if your dad did so.

www.nationalwillregister.co.uk

As regards the debtor's ability to repay the money, if she "doesn't have it", does she own a property or have a job? Ultimately if you were to go to court and get judgment against her, enforcement options would include a charge over any property she owns, or an attachment of earnings order (where her employer has to pay you in instalments directly each month before paying the balance of her wages to her), so it will be in her interests to come up with repayment proposals (which could include her taking a commercial loan or extending her mortgage - not your problem how she gets the money) to avoid that.