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Can an executor sue someone who stole from the deceased?


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A relative's carer helped themselves to her bank account.

This was discovered by the executor who stopped looking back through the bank account when the amount topped £11k in the five months prior to her death and handed the matter to the police.

 

It is going to court and there's little doubt there will be a conviction.

It will however be for considerably less than the amount taken because the criminal case is sensibly concentrating on those withdrawals and purchases which can be proved without any doubt.

 

The direct victim was the now deceased relative and if she was still alive she could sue the thief.

 

Can executor or beneficiaries?

Edited by dx100uk
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Yeah, that's the plan.

Criminal conviction first.

I don't think there's any money there but there is a house.

 

I'm guessing whether the beneficiaries sue or not will depend on the sentence. Might not be very nice but I do understand them wanting their pound of flesh.

Edited by dx100uk
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You really wouldn't believe it.

The last thousand odd was withdrawn from cashpoints while she was in hospital in the last few days of her life, drugged up on morphine and with her son not leaving her side. The maximum withdrawal allowed per day for four days.

 

They're still claiming this was at her request and they handed it over to her. The only time her son left her during that time was to go to the hospital cashpoint and withdraw his own money because the carer was complaining she hadn't been paid.

Edited by dx100uk
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Hi

 

I would wait for the conviction as mentioned.

 

Something to consider

 

If the Carer was employed by the Local Council/Trust/NHS they are responsible for the actions of there employees.

 

In my opinion this then gives you the avenue of holding the Employer responsible for there Employees action so you go after both the Individual and there Employer to recover the Funds.

 

Even though the Conviction if not set I would raise your concerns about this carer there Employer and also the Care Quality Commission: https://www.cqc.org.uk/contact-us/report-concern/report-concern-if-you-are-member-public

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I advise to the best of my ability, but I am not a qualified professional, benefits lawyer nor Welfare Rights Adviser.

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If the Carer was employed by the Local Council/Trust/NHS they are responsible for the actions of there employees.

It was a private arrangement, started out as a cleaner and then did more and more. I believe she was introduced initially by a family member who worked with her in a private care home. The arrangement had been in place for years without apparent problem. We don't feel it's our place to say anything to anyone until after a court case.

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It would normally be the executor who brings claims on behalf of the estate. Not the beneficiaries.

 

See http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19#19.7 and http://www.civillitigationbrief.com/2016/01/14/a-potential-beneficiary-cannot-bring-an-action-on-behalf-of-an-estate/.

 

Legal fees and expenses can be paid out of the estate. It can be a good idea for the executor to ask for the beneficiaries to confirm they are happy for the executor to take that action where possible, so that there can be no question of the executor mismanaging the estate.

 

The timing is difficult. It would be easier to bring a civil claim after the criminal case - as facts proved in the criminal case could be used as evidence in the civil claim. However, waiting gives the Defendant more time to hide assets. If any assets belonging to the Defendant can be identified (e.g. a house, a bank account), it may be worth the executor proceeding with legal claims ASAP, to reduce the chances of the Defendant disposing of those assets without making payment. By the time you get to the end of the criminal case the money will probably be gone.

 

Options such as a freezing order over the Defendant's bank account can be considered. It would probably be a good idea for the executor to take an initial bit of legal advice to assess whether there are simple steps that can be taken now to secure the assets. Indeed, the executor's duties to the estate probably demand they at least consider properly whether the estate should be taking legal action now or not.

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Thank you for your answers. As it happens, the executor was one of the beneficiaries. I don't think there's a hope in hell of seeing any of the money, we knew that from the start and it isn't why the matter was handed to the police. It's more a case of the beneficiaries (maybe) wanting a civil judgement as well just to make a point really if the criminal case doesn't lead to a sentence which satisfies them. What she did deserves a custodial sentence. What may actually be admitted to/bargained down to is another matter and the beneficiaries understand/accept that. Any guilty verdict will at least mean she can't do this to anyone else.

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If the evidence against the Defendant is clear, obtaining a civil CCJ should not be particularly difficult.

 

There would be a cost to filing the court claim though, which you might not get back if the Defendant has no more money, unfortunately.

 

In the circumstances fingers crossed that the criminal process gives you some sort of resolution.

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There would be a cost to filing the court claim though,

Money isn't an issue - it's far more about, well revenge really which is why I said earlier it's not very nice but I understand it. I think the sons feel every emotion but anger. Guilt is certainly high on the list for 'allowing' it to happen.

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