After acquired property

strimmerman

Hi,

Technical question.

You are declared bankrupt within the 12 month period your father dies leaving no will therefore intestate.

You start to deal with the estate and consult a solicitor. At this point it is not set in law that you are to be the only beneficiary so you do not inform the OR as yet. While the formalities of applying for letters of administration is occurring the original petitioner for the bankruptcy order "suspects" you will a beneficiary and contacts the OR. The OR does nothing. Once all is in order with the solicitor dealing with the probate the solicitor contacts the OR to advise them you are to benefit from the estate, who then sends the after acquired property claim letter to you. However this is sent after the 42 day period they have to claim after acquired property once they become aware, as the OR failed to act when contacted by the original petition detailing their suspicions of the fact you will acquire property.

The question is can you argue the OR is outside the 42 day period and bus the claim is now invalid and if so who would you get to deal with this lawyer wise....the solicitor dealing with the estate is not a bankruptcy expert.

Many thanks for any responses.

dojoman

Did you officially tell the OR about this matter?

strimmerman

Yes the solicitor dealing with the deceased estate contacted the. However I know that the person who petitioned for the bankruptcy contacted the OR before the solicitor telling the OR that they suspected an inheritance was due and the OR made no attempt to investigate this. The solicitor contacted the OR for the official "this person will be inheriting" information once they were in a clear position in terms of applying for letters of administration etc as the estate was intestate and complicated.

TheGardener

I claim no expertise (or answers) but does the solicitor telling the OR count? - isn't it a rule that the BR themselves has to tell the OR within 21 days of knowing their circumstances have changed? I don't know if the solicitor counts unless they were specifically instructed by you to do so.

As you say - you can't report what you don't know and it could have transpired that your father had debts that exhausted his estate, so I guess the OR would have to wait for the probate solicitor to conclude their business too - However, how do you know the OR did not act on the information received from the petitioner? Is it possible that the OR did do some investigations - just that they didn't tell you ? (it could potentially have been the start of a criminal investigation as far as the OR knew)

So I suppose the critical question, assuming you have done everything legally required of you is - is the OR out of time to claim AAP if they missed the 42 days? Perhaps the Debt Doctor on this board is the person to know - or perhaps an insolvency practitioner?

debt_doctor

Hi,


Here is some information to consider;


17.25 Official receiver as receiver and manager of the bankrupt's estate
On the making of the bankruptcy order the official receiver will be the receiver and manager of the bankrupt's estate until the estate vests in a trustee URL="http://www.insolvencydirect.bis.gov.uk/technicalmanual/Ch13-24/Chapter17/part2/Notes.htm#9"][COLOR=#0066cc]note 9[/COLOR][/URL. The official receiver will become trustee when he/she has given notice to the court of his/her decision not to call a meeting of creditors for the purpose of appointing a trustee URL="http://www.insolvencydirect.bis.gov.uk/technicalmanual/Ch13-24/Chapter17/part2/Notes.htm#10"][COLOR=#0066cc]note 10[/COLOR][/URL or where the meeting of creditors has failed to appoint a trustee and the official receiver decides not to refer the need for an appointment to the Secretary of State and gives notice of this to the court URL="http://www.insolvencydirect.bis.gov.uk/technicalmanual/Ch13-24/Chapter17/part2/Notes.htm#11"][COLOR=#0066cc]note 11[/COLOR][/URL.




31.8.12 Trustee has 42 days to claim after acquired property


The official receiver, as trustee, has the power to claim, for the benefit of the bankrupt’s estate, any property acquired by the bankrupt or devolved upon the bankrupt since the date of the bankruptcy order URL="http://www.insolvencydirect.bis.gov.uk/technicalmanual/Ch25-36/Chapter31/part8/part2/part%202%20notes.htm#3#%2436765#3#%2436765#3#%2436765#3"][SIZE=3][COLOR=#0000ff]note 3[/COLOR][/SIZE][/URL.

The official receiver, as trustee, has 42 days, beginning with the day on which it first came to his/her knowledge that the property in question had been acquired by, or had devolved upon, the bankrupt in which to make the claim in writing URL="http://www.insolvencydirect.bis.gov.uk/technicalmanual/Ch25-36/Chapter31/part8/part2/part%202%20notes.htm#4#%2436765#4#%2436765#4#%2436765#4"][COLOR=#0066cc]note 4[/COLOR][/URL. See paragraph 31.8.14 for information on how to serve notice of a claim for after acquired property.
The 42 day period for claiming the property cannot commence until a trustee is appointed as the period begins with the day that the knowledge of the property came to the knowledge of the trustee (rather than the receiver and manager) URL="http://www.insolvencydirect.bis.gov.uk/technicalmanual/Ch25-36/Chapter31/part8/part2/part%202%20notes.htm#5#%2436765#5#%2436765#5#%2436765#5"][COLOR=#0066cc]note 5[/COLOR][/URL (see paragraphs 17.24 and 17.25 for information on circumstances in which the official receiver would be appointed trustee, and paragraph 31.8.18 for action to take where knowledge of after-acquired property comes to the attention of the official receiver as receiver and manager).
Where the official receiver takes the decision not to lay claim to the property, it would be good practice to give the bankrupt written notice of this decision.




So, the important time is 42 days from when notification is received of the property and that the OR was the trustee, which is not from the date you became bankrupt. The OR will be or will have become trustee when s/he notifies the court as in 17.25 listed above.
The time limit only applies to a trustee, not a receiver or manager.


So the question is, when did or has the OR become trustee?


That is my view.


DD