Is This Transfer Legal? Surely not...

tooldle

Are you certain this was not a joint act? Asking as you’ve notified the bank in December of your fathers passing yet, the account was used for shopping in January, and then emptied. 

Brainfire

tooldle said:

Are you certain this was not a joint act? Asking as you’ve notified the bank in December of your fathers passing yet, the account was used for shopping in January, and then emptied. 

Was in his name only. He died on 17th Dec and the £4k was transferred the next day. The online shop was on 22nd Dec. I notified them of his death around 27th Dec after i got the email about the direct debit. The account was emptied and closed on 16th Jan with production of the death certificate, a copy of the will showing executors and personal ID.

phillw

You can apply to get them removed as an executor and report the missing money to the police.

It's also possible to use them to return the money 

phillw

tooldle said:

Are you certain this was not a joint act? Asking as you’ve notified the bank in December of your fathers passing yet, the account was used for shopping in January, and then emptied. 

Joint account doesn't really matter. If the deceased was the only person to put money into the joint account and money used for shopping for the deceased, then it doesn't automatically become the second account holders property.

https://www.gadlegal.co.uk/news/elder-law/the-inherent-dangers-of-joint-bank-accounts

"When one person alone puts money into joint names, there is a presumption of Resulting Trust in favour of the provider of the funds."

user1977

phillw said:

It's also possible to use them to return the money 

Or (assuming they're a beneficiary) just account for it in distributing the estate.

doodling

Hi,

bobster2 said:

doodling said:

Hi,

Legally, executors have a very broad right to manage the deceased's assets, from the moment of death, providing they are not acting to the detriment of the interests of (all) the beneficiaries.

Not by impersonating the deceased - which is what using the deceased person's internet banking log in details amounts to.

They need to access funds in bank acounts using appropriate methods - i.e. asking the bank for them.

They're entitled to access the money.

You might argue that they fraudulently obtained the money but as they were entitled to access it anyway I very much doubt the CPS would be interested in pursuing a case for fraud.

In addition, they may not have complied with the bank's terms and conditions but it isn't clear what loss the bank has suffered so I doubt they'd take any action.

The only kind of criminal legal case that will have any merit is one where someone can show, beyond reasonable doubt, that their actions were intended to be a theft perpetuated against the beneficiaries of the will.  There may of course be the possibility of a civil case to reclaim the money if things are less clear cut.

The best approach here is a pragmatic one where someone (preferably several people) points out to the errant executor in very blunt language that they are heading towards acting illegally and that they can either return the "loan" they have taken from the estate or they can have it deducted from their inheritance but that the rest of the executors / beneficiaries are rather upset and will be watching them very closely.  Remember that you need that executor to get the estate sorted and that removing an executor is slow and expensive so you probably don't want to go too far in alienating them.

I note that so far the OP hasn't commented on what the reasons were for the transactions - has no-one asked the executor in question?

tooldle

phillw said:

tooldle said:

Are you certain this was not a joint act? Asking as you’ve notified the bank in December of your fathers passing yet, the account was used for shopping in January, and then emptied. 

Joint account doesn't really matter. If the deceased was the only person to put money into the joint account and money used for shopping for the deceased, then it doesn't automatically become the second account holders property.

https://www.gadlegal.co.uk/news/elder-law/the-inherent-dangers-of-joint-bank-accounts

"When one person alone puts money into joint names, there is a presumption of Resulting Trust in favour of the provider of the funds."

To be fair, we don’t know the circumstances of the account in terms of funding, hence my ask for clarity around ‘ownership’ of the account

tooldle

Brainfire said:

tooldle said:

Are you certain this was not a joint act? Asking as you’ve notified the bank in December of your fathers passing yet, the account was used for shopping in January, and then emptied. 

Was in his name only. He died on 17th Dec and the £4k was transferred the next day. The online shop was on 22nd Dec. I notified them of his death around 27th Dec after i got the email about the direct debit. The account was emptied and closed on 16th Jan with production of the death certificate, a copy of the will showing executors and personal ID.

Ah, so not emptied by using the online access. This seems to be a small estate so be wary of running up costs. If you have no contact with the individual, is executor number 3 in a position to ask questions of executor 1 as to value of the estate and what progress has been made in settling matters? 

Brainfire

tooldle said:

Brainfire said:

tooldle said:

Are you certain this was not a joint act? Asking as you’ve notified the bank in December of your fathers passing yet, the account was used for shopping in January, and then emptied. 

Was in his name only. He died on 17th Dec and the £4k was transferred the next day. The online shop was on 22nd Dec. I notified them of his death around 27th Dec after i got the email about the direct debit. The account was emptied and closed on 16th Jan with production of the death certificate, a copy of the will showing executors and personal ID.

Ah, so not emptied by using the online access. This seems to be a small estate so be wary of running up costs. If you have no contact with the individual, is executor number 3 in a position to ask questions of executor 1 as to value of the estate and what progress has been made in settling matters? 

Executor 3 is my brother (her father) and he apparently has no interest in any of it - I have tried asking him to talk to her, but no joy. I don't think he really talks to his daughter now either. I now don't really have any contact with him so it'll have to be legal advice methinks. 

It gets even more complicated in that my uncle had loaned my parents £27k in 2006 secured against 30% of the value of their ex-council property, to be paid to his estate should he pass before them (he did). This was a section in their will. 

I've since discovered that my father moved solicitors in 2016 to draft a new will with the sole purpose of omitting this loan clause. My cousin who was my uncles executor would now like some/all of that money back if possible. 

I just can't let it go as there's been years of financial abuse and coercion - my father was 88. He didn't even know what TikTok was, yet £110 was spent in the TikTok shop 3 days before he died and that's only a solitary example. £200p/w in Tesco for a man who normally had milk, eggs and bacon in the fridge etc, etc.

So, if my cousin has no claim on the proceeds of the house sale (most unlikely) she may have a claim for everything that was remaining of the estate. I wouldn't get anything i was due from it, but that's fine as long as no one else did either.

bobster2

doodling said:

Hi,

bobster2 said:

doodling said:

Hi,

Legally, executors have a very broad right to manage the deceased's assets, from the moment of death, providing they are not acting to the detriment of the interests of (all) the beneficiaries.

Not by impersonating the deceased - which is what using the deceased person's internet banking log in details amounts to.

They need to access funds in bank acounts using appropriate methods - i.e. asking the bank for them.

They're entitled to access the money.

You might argue that they fraudulently obtained the money but as they were entitled to access it anyway I very much doubt the CPS would be interested in pursuing a case for fraud.

In addition, they may not have complied with the bank's terms and conditions but it isn't clear what loss the bank has suffered so I doubt they'd take any action.

The only kind of criminal legal case that will have any merit is one where someone can show, beyond reasonable doubt, that their actions were intended to be a theft perpetuated against the beneficiaries of the will.  There may of course be the possibility of a civil case to reclaim the money if things are less clear cut.

Even if they are ultimately entitled to the contents of the account as beneficiaries - nobody should be obtaining this by impersonating the deceased. Doing this online - see Computer Misuse Act 1990.

As an analogy - when someone dies do you think it would be appropriate for an executor to walk into a branch of a bank and not tell the bank about the death. But instead walk up to the counter and make a cash withdrawal using the deceased person's debit card and pin number - i.e impersonating the deceased?

Generally the advice many of us try to give on this board is about what is the correct and legal approach to take - not on what CPS will bother prosecuting.