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Chasing executor for inherited shares never received

Q&A: Executors can be made personally liable for loss if negligent

Once you become an executor to a person’s estate, you are answerable for life for any actions taken as executor.

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Dominic Coyle
Tue Jul 31 2018 - 05:56

I have discovered that I inherited shares in August 2000 which have never been passed over to me, nor have I ever been given the share dividends by the executor. They are still being sent to the executor’s address.

There were 3,025 AIB shares, which were valued at the date of death at £22,385 punts. A further 600 Irish Life shares had been converted to 365 Irish Life & Permanent shares and had a value of £2,500 punts.

The family of the executor has moved to prevent me making any contact. What can I do to get what I am owed and is this fraud and should it be reported to the police/gardaí ?

Ms M.H., email

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In all the years I've been writing this column, this is the first time I have ever come across this situation. Delays in the probate system are not uncommon but that you would not have been aware of an inheritance going back close to 20 years? No.

And there’s good reason for why this situation does not arise generally. Executors, or personal representatives – the people who undertake the disposal of a person’s estate after they die – should be chosen for their integrity and reliability to carry out the wishes of the person whose will they are managing. On top of that, an executor has a range of fairly specifically stated legal responsibilities, including the fair and timely gathering of all relevant information regarding the affairs of the dead person – their assets and their liabilities – and the sharing out of any balance of their estate in accordance with their stated wishes or as close as can be achieved given the residue of the estate after any debts have been paid.

And, in any case, if they don’t want to do it, they have every right to decline at the outset. So you would expect only to get people who were committed to doing a fair and reasonable job of it – generally with the help of legal advice if they are not solicitors themselves.

And you would expect that someone who was a beneficiary to a will would have been contacted in a timely fashion and would have had any bequests that had been set down for them transferred to them once a grant of probate had been taken out.

As this inheritance was pretty specific, I’ll assume there was a will in this case. So why would the executor not have contacted you? The only potentially reasonable excuse that I can imagine is that they couldn’t find you.

Again, I don’t know your personal circumstances but, in general, it is pretty difficult for someone who is close enough to the dead person to receive such a specific bequest to be so remote that no one connected with the dead person or their extended family would know who they were and how to contact them. It would have been the responsibility of the executor to try to track you down and to preserve any benefits due to you.

Assets

An executor is entitled to benefit under a will but only as specifically laid down. They can also charge their reasonable costs of executing a will against the estate. What they cannot do is use the assets of the estate to reward themselves beyond any personal bequest and valid costs.

So where does that leave you now? I spoke to Eoin O'Shea, the principal of O'Shea Legal in Dublin. The first thing he was keen to stress is that this is not a matter of fraud and nor is it an issue for the Garda.

But it is a serious matter. Once you become an executor to a person’s estate, you cannot walk away or wash your hands of it – not even all these years later. You are answerable for any actions taken as an executor for life.

In general, an executor is expected to distribute the dead person’s estate as soon as is practicable. They have, in any case, a 12-month window from the date of death, known as the executor’s year, to carry out their duties before any beneficiary can proceed against them.

Mr O’Shea says the issue for you is that you will have to prove negligence against the executor. For their part, especially if it gets to court, the executor will need to show there are reasonable grounds for their actions.

As a first step, you will need to hire a solicitor yourself and get them to write to the executor at their known address to seek an explanation for the failure to distribute to you the shares you had been left in the will in a timely fashion, or at all.

He suggests that you may need to send a number of such letters, demanding an explanation.

It may be that a legal letter does get you some explanation or satisfaction but if, after several letters, there has been a failure or refusal to engage, Mr O’Shea says you will need to apply to the courts have a full account of the estate of the deceased filed or sent to you.

Legal costs

The good news, if there is any, is that you can charge your legal costs to the estate or the executor themselves. Given the sums involved, this case would be going through the Circuit Court which has the advantage that your costs will be lower and therefore more likely recoverable.

Leaving Mr O’Shea aside, I find deeply puzzling your assertion that the executor’s family has moved to prevent you making any contact with the executor. Unless the executor is very ill, I can see no reason why there would be any attempt to frustrate access. And even then, if the executor was no longer in a position to handle this matter, you surely should have been directed to their legal adviser.

Given their lifelong responsibility as an executor, this sort of challenge is never likely to go away so it would make sense for them to clarify what has happened.

If you were left these shares in the will, you are entitled to them. And if, through any negligence of an executor, you are now at a financial loss, the .

Given we are talking about shares in financial institutions and that they should have been in your name well before any financial crash, you clearly have suffered a financial loss. Your inheritance, in today’s money, is worth a tiny fraction of what it would have been in 2000 or 2001.

You refer to dividends being sent to the executor’s address. This may have been the case in the early years before the financial crash though not for years thereafter. AIB has started repaying, albeit modest, dividends in recent years.

But the fact you have suffered a loss is not, of itself, actionable. You will need to show that the executor behaved – and maybe continues to behave – in a negligent manner.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice

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