More often than not when a debtor passes away, someone has handled the assets of the deceased, predominately by closing bank accounts or selling assets. By doing so, they have become an intermeddler or an executor de son tort, meaning an executor in their own wrongdoing.
An intermeddler is someone whose actions amount to someone taking steps as if they are the personal representative or executor even if they are not entitled to that role or do not wish to be the personal representative.
Section 28 of the Administration of Estates Act 1925 states: ‘If any person, to the defrauding of creditors or without full valuable consideration, obtains, receives or holds any real or personal estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased, he shall be charged as executor in his own wrong to the extent of the real and personal estate received or coming to his hands, or the debt or liability released, after deducting -
- a) any debt for valuable consideration and without fraud due to him from the deceased person at the time of his death; and
- b) any payment made by him which might properly be made by a personal representative.’
This means that if someone has become an executor de son tort, they become liable for assets they have collected and to creditors for debts as if they were the personal representative. This however does not extend to any debt owed to them personally or any payment that they were correct in paying for the deceased.
They also become personally liable to pay any the inheritance tax due on the assets handled.
If the deceased left a will naming the intermeddler as executor, they may lose the right to renounce probate and not act as it is interpreted as they have accepted that office. Examples of this include releasing a debt on behalf of the deceased, see Pytt v Fendall (1754) 1 Lee 553. This does not extend to those who die intestate as a person’s right to deal with the estate is conferred from the Grant.
If this named intermeddling executor has failed to take out the grant within 6 months of the date of death, another interested party, such as a beneficiary, can obtain a direction from the court that the intermeddling party takes out the Grant under Rule 47(3) of the Non-Contentious Probate Rules 1987. This is known as ‘citation to take probate’ and is done by personally serving the citation and affidavit in support of citation on the intermeddling party. The documents must have been sealed by the Probate Registry prior to serving and a caveat lodged, to prevent a grant from being issued. Rule 47 then requires the intermeddling party to ‘show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of six months from the death of the deceased’ within 8 days of being served by entering an appearance at the Probate Registry and serving a copy on the other party. If the intermeddling party fails to respond to the initial request, the party who has issued the citation can apply to the Court by summons requiring the intermeddler to take out the grant within a specified time, for a grant to be issued to the applying party or someone else (Rules 47(5)(c) and (7)(c)), or an order passing over the intermeddling party under s116 of the Senior Courts Act 1981.
It is very important therefore that any party who has the ability to handle assets of the deceased takes steps to consider their actions. Further it is of equal importance for creditors to explore the actions of those who may have intermeddled in order to hold the intermeddler responsible for the dissipation of any assets from the deceased’s estate which could, and rightly should, have been used for payment of debts.
Written by Frances Boxall, Solicitor, Judge & Priestley LLP
For more information, or to arrange a meeting to discuss the deceased debtor product, please call J&P Credit Solutions on 020 8290 7400 or complete our contact form.
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