Unpaid Nursing Home fees after death - who is liable?

Errata

The person who contracts with the funeral director for the funeral has to pay the bill and be reimbursed from the estate. A wake isn't a necessary part of a funeral like the hearse and plot/crem are, so things could get interesting on that front.
Could your husband seek guidance from the probate office re continuing to be the executor ? I'm not sure what difference the estate being insolvent might mean, but another poster might.

ratty67

I'm not sure either what difference it would make as everything I've read this evening says the most usual route is for the executor (PR) to carry on and administor the estate but they must observe a very strict order when paying the debts.

localhero

It is perfectly obvious that the daughter has been extremely devious here to profit from her vulnerable mother and laissez faire attitude of the local authority.

The legal position is that now the lady has died, the money in the joint bank account passes to the daughter by survivorship and that the unpaid care fees and funeral account now become debts on the estate and must be dealt with by the executor.

There is a strict pecking order, and in the absence of secured creditors, the funeral directors are at the moment the highest priority, followed by the care home and any other ordinary debts.

I'm afraid despite the LA's incompetence, social services and the police are unlikely to take much of an interest and so I'm afraid it will probably require a legal remedy instigated by the executor.

ratty67 wrote:

The solicitor was very vague really.

You don't say what involvement this solicitor has in the case, but I'm afraid someone who is unable to give a precise explanation of the legal situation together with a suggested plan of action is a solicitor that MUST NOT be instructed as an executor. Particularly as this case has the potential for substantial fees to amass - fees incidentally that are equally liable out of the estate alongside the funeral bill.

ratty67, before you do anything else can you find out more about the life policy? (ie the nominated beneficiary and the amount.) This will determine whether or not the estate is insolvent and what your options will be.

ratty67

localhero - thank you so much for your detailed response, far more helpful than the solicitor!

I'll try and answer your questions and respond to points made...

localhero wrote: »

It is perfectly obvious that the daughter has been extremely devious here to profit from her vulnerable mother and laissez faire attitude of the local authority.

The legal position is that now the lady has died, the money in the joint bank account passes to the daughter by survivorship and that the unpaid care fees and funeral account now become debts on the estate and must be dealt with by the executor.

Understood completely but I'm afraid I don't grasp why the Law sets things up in this manner. It appears to be a green light for the unscrupulous to abuse someone elses money. You can arrange for someone to go into a nursing home, gain control of their pensions and finances, pay the care home with the persons money when you feel like it and no-one will touch you because the estate gets the debt? You're only allowed control of someone elses benefits if you use that money for the person on whose behalf you're acting or that's what I was lead to believe. I'm not complaining about your advice, just the way the Law appears to work!

localhero wrote: »

There is a strict pecking order, and in the absence of secured creditors, the funeral directors are at the moment the highest priority, followed by the care home and any other ordinary debts.

Should the daughter not be paying this and then claiming it back? Can she claim for hiring a room for the wake? DH has been sent the receipt!

localhero wrote: »

I'm afraid despite the LA's incompetence, social services and the police are unlikely to take much of an interest and so I'm afraid it will probably require a legal remedy instigated by the executor.

Interesting. Infuriating also. Clearly daughter thinks differently as she's still running scared. She obviously thinks she's going to be in a lot of trouble. Would it make any difference at all if the statements show she has used her mothers money for her own benefit (black and white proof)? Our MP has offered his help if we require it and I'll be interested in opinions on this.

localhero wrote: »

You don't say what involvement this solicitor has in the case, but I'm afraid someone who is unable to give a precise explanation of the legal situation together with a suggested plan of action is a solicitor that MUST NOT be instructed as an executor. Particularly as this case has the potential for substantial fees to amass - fees incidentally that are equally liable out of the estate alongside the funeral bill..

The solicitor was the person holding the will. Up until this point in time she's done virtually nothing but gather receipts and bills. The daughter refuses to send anything to DH, she sends it all to the solicitor. The solicitor is now trying to double up on work DH has already done, thus incurring unecessary fees. She is disuading DH from being executor but I (like you) have the opinion she's not fit for the job. DH called her again today asking her NOT to write to the bank for statements and for her to please forward information she has to him. He also asked for a call back. She failed to do so.

localhero wrote: »

ratty67, before you do anything else can you find out more about the life policy? (ie the nominated beneficiary and the amount.) This will determine whether or not the estate is insolvent and what your options will be.

We're going to the office of the particular solicitor holding these funds on Friday with the copy of the will, death cert and proof of ID. We'll then get to find out the amount and what their bill entails. The policy was paid out after the ladys husband died (early 2005), she was the named beneficiary. We have no idea why this money was being looked after. This again is something the solicitor wants to do herself but it's hardly rocket science is it?!

Fingers crossed it is for an amount that will not only settle the debts but leave the beneficiaries with something, just as the lady wanted.

As a further thought, how easy would it be to get rid of the solicitor and when would be the best time to ditch her services?

Carnation

It is my understanding that an executor is allowed to claim reasonable expenses incurred whilst carrying out their duties i.e. cost of certificates, postage, telephone expenses etc. Send your bill to the daughter when you know the amount of the funds held.

gizmo111

Surely the daughter has employed the solicitor not the estate, and she would therefor be personally liable for the solicitors bill?

localhero

[FONT=&quot]I suspect the daughter is lying extremely low, waiting to see what your next move will be. It is a moot point whether she should settle the funeral bill and reclaim it from the estate - one way or another the estate ultimately pays for it. I suppose a claim for a room for the wake is arguably an expense associated with the funeral provided the cost is reasonable.

I agree that the law can be extremely unfair, but there are remedies available to your husband which may or may not be through the probate process. Irrespective of the law of survivorship with the joint bank account, where the daughter has deliberately withheld moneys that should have been paid to the care home, she has perpetrated what's known as 'unjust enrichment', and so action can be taken so that the estate recovers this money from her.

Your husband has a thankless task and is to be commended with trying to resolve this, but I think he will have to take a bit more of a back seat with this one; and so the time has probably come where a solicitor must become involved. [/FONT]

First of all, if you have not engaged this solicitor to act, then any work they have taken upon themselves to carry out is unauthorised and not chargeable. There shouldn't be a fee for handing over any documents to you that they are holding either. Don't let this person persuade you into signing anything or agreeing to let her act if you are not 100% confident that she can properly resolve this.

In any case, whoever you decide to act for you can do so on an ad-hoc basis where necessary. You may well find that one stern letter from a solicitor requesting the daughter reimburses the estate for the care bill (and possibly the funeral bill too) with the threat of court action for recovery, may be enough for her to see sense and cough up. It might not of course, in which case a view must be taken whether or not the costs of dragging her through the courts will be worthwhile - and this will partly depend on whether she's worth suing.

As this matter is contentious, it's important that a solicitor that is qualified for the task is appointed, and a good starting point is sounding out a couple of members from the Society of Trusts and Estate Practitioners (STEP), though I wouldn't hesitate too much in getting a strongly worded solicitor's letter winging its way to the daughter. The questions I would suggest you ask of any potential solicitor is 1) if the estate is solvent, can the unpaid care fees be recovered from the daughter, and if so how; and 2) the same question if the estate is insolvent. If any say there isn't anything that can be done apart from sending her a letter - walk away as they're only interested in winding up the estate.

I would be interested to know why this solicitor has held on to this money as well. I'm not sure they should be charging you - more like raising a cheque payable to the executors with interest.

Good luck - let us know how you get on.

monkeyspanner

Just because the solicitor held the will there is no implied contract with them to do any work for the executor. However solicitors have a knack of weedling their way into situations and thereby incuring costs. I think if your husband is happy to deal with all the matters and feels the solicitor is unnessesary a letter to the solicitor saying that you do not wish him to act in this matter and that any correspondence from the daughter is to be returned to her with the instruction to deal with your husband as executor could possibly back the daughter into a tighter space.

Errata

Reading this again makes me wonder if the solicitor is joint executor with Ratty's OH. Or have I missed something ?

The solicitor was the person holding the will. Up until this point in time she's done virtually nothing but gather receipts and bills. The daughter refuses to send anything to DH, she sends it all to the solicitor. The solicitor is now trying to double up on work DH has already done, thus incurring unecessary fees. She is disuading DH from being executor but I (like you) have the opinion she's not fit for the job. DH called her again today asking her NOT to write to the bank for statements and for her to please forward information she has to him. He also asked for a call back. She failed to do so.

localhero

It's a good point Errata, as I did wonder why the solicitor was getting involved if they had no authority to do so and why the daughter was corresponding with them.

Perhaps Ratty can confirm if her husband is sole executor or jointly with anyone else.