Could I be charged with fraud?

[BiscoffCheesecakes]

My dad died a few years ago & he left his estate to me & my brother. My db asked me to look after his share of money. At the time he told me it was because he wasn't very responsible with money & I knew more about where to invest etc. So I've had all the money in my name in various accounts & just transferred him money if he needed it for holidays etc.

I'm not particularly close to him & didn't know much about his work situation. He's always been a bit cagey about it so i don't ask. I now know he is on benefits & after seeing a post on here recently, I realised he wanted me to look after his money so he could carry on receiving benefits.

If there are investigations in the future could I just say that I wasn't aware of his benefit situation? Or will I or he be charged with fraud?

The issue here is around the inheritance not being distributed to the beneficiaries as per the will ie you did not give your brother his share (because he asked you not to). If you did a Deed of Variation saying it was all left to you then it would be fine.

You can then give your brother bits of money whenever you want to and it is not actually benefit fraud. It is very common actually to do this sort of thing so that benefits are protected.

Where you have done the wrong thing (in the eyes of the law) is that you “kept” his inheritance from him.

Would the deed of variation (or just choosing to give the money to OP with a deed) not be treated as deprivation of assets on the part of the brother?

It wasn’t given to you. You took it directly from the estate, instead of distributing it first. You need a deed of variation to do that.

@WhatAMarvelousTunecertainly if he inherited and then gave it to OP it would be DOA. But if the will was varied then possibly not.

If he never received the money then it was never his so I don’t think they could claim DOA.

They couldn’t do a deed of variation to get around benefit rules, that would have been deprivation of capital.

Although that would have solely been the brother’s problem. Not distributing the estate properly as executor could very much be the OP’s problem.

Deed of variation cannot be used to avoid losing means tested benefits.

the DWP would have treated the brother as if he had the money.

Same. Hand over what’s his in full and say you’ve been given financial advice to do this or it could
mess up your own affairs

We had a sort of similar scenario and while probate was being handled by the solicitor we removed one beneficiary and diverted the funds to someone else who will “use the money for the benefit of X” instead.

Solicitor said that was fine to do from the estate POV as everyone involved was in agreement and X signed to say they rejected the inheritance.

People reject an inheritance for many reasons.

If you vary the will and then don’t receive any money it will never even be on the radar for benefits assessment.

If it were me I would transfer the money to him immediately. His financial affairs are for him to sort out and be responsible for.

You should be very clear that this is your opinion.

It is absolutely not DWP policy and could cause people a lot of grief.

It’s fine to do from the estate POV - that’s not remotely the same as being ok from a benefits POV.

X would absolutely be treated as having gifted the money to Y (and therefore having it) by the DWP if they claimed means tested benefits in this situation if the dept that deals with situations like this got a hold of it.

Obviously there are some cases that they’ll not get a hold of, but they do so it’s a gamble.

My db was an executor too so he would have been responsible for distribution as well

That said @BiscoffCheesecakesyoi cannot be charged with benefits fraud as you don’t claim them.

Only the person who signs the claim is responsible (unless they have an appointee) which is why it’s sometimes used in abuse cases (not allowing a change from single claim to joint then holding that threat over them for example).

Your issue will be if any complaint is made about the estate not being dealt with properly as executor.
Have you kept meticulous detail of how much your brother should have had, where it is and how much he has had?

I haven’t claimed to be an expert on DWP policy, this is Mumsnet not Citizens Advice.

I have described our own personal experience of a similar scenario and what we were advised and what we did.

Well since you know now that he's on benefits, and you are facilitating his benefit fraud by holding onto his money that he should have declared to the DWP, then yes, you could be criminally liable as being in a conspiracy to commit fraud.

you said if they did a DOV “it would be fine”

I’m just making sure the OP knows that is opinion (in some cases it will be fine) but it’s not DWP policy so in many cases it isn’t fine.

How much money are you talking about in the beginning and how much is left?

Your brother is really out of order putting you in this position.

From the OPs point of view, she hasn’t committed benefit fraud, she has withheld her brother’s inheritance. With a DOV that would be fine for her.

Did he take any part in moving the money around? Was he named on the temp executors account or did he leave it all to you ?

Where did the funds go when they were distributed from the executor account OP?

Did they go direct to you or did he receive his share of the inheritance into his own account?

This is an important distinction.

Can’t have two executors without one being primary and the other an alternate in case the primary is unable or unwilling. Sounds like you were the primary executor and your db didn’t do anything.

There can be two executors. The term is joint executors.

Are you and your brother close, are there any other siblings or family members that could stick their oar in? .
Reason I ask is that when my DM died me and my DB were executors. No other siblings or family members were receiving anything. My DB asked me to hold the money ( no other assets and it was a lot) and he took what he wanted as and when. He's not on benefits by the way just didn't want to frit is away on rubbish. It was nothing to do with anyone else and the arrangement worked for us.

Unless you are a lawyer, you are giving quite dangerous advice. There are plenty of conflicts of laws. What might be perfectly legal from a trusts and probate point of view, will not necessarily be ok by the rules of the DWP and benefits claims. This has been going on for a few years. The money has already been distributed from the estate (presumably over the DWP permitted thresholds for savings), and it has already been used for the brother's needs/wants (so that he can go on holidays etc) whilst still receiving benefits. That's clear fraud and the OP is aiding it (first unwittingly, now knowingly). There's no question that the money belongs to the brother now (and always has done since distribution) even if it is in the possession of the OP, who isn't claiming ownership of it.

So does that mean it's fine to do this for tax purposes but not to retain benefits? Surely if this is only slightly over the amount for keeping benefits people on this thread are making a huge fuss about nothing and the chances of anything coming to light are vanishingly small. The brother's been out of order but the money's nearly gone so that's that.