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Published On: November 11, 2022 | Blog | 0 comments

I am owed money by somebody who has passed away. How can I recover it from their estate?

If you are owed money by somebody who has passed away, you should be repaid in full from their estate (the money and property they have left behind), providing the estate is not insolvent.

Where the estate is insolvent (the assets are insufficient to settle all the liabilities), there is a legal order of priority by which any debts must be repaid. Further guidance on this can be found in this blog.

The executor(s)/administrator(s) of the estate are responsible for collecting the Deceased’s assets and settling their debts. An executor is appointed by the will of the individual who has passed away. An administrator is appointed where the Deceased has failed to leave a valid will.  Collectively they are known as “Personal Representatives”.

If the Personal Representative(s), dispute your debt and refuse to pay, you can bring Court proceedings against the Deceased’s estate to seek its recovery. The Personal Representative(s) would be named as Defendant(s) to these proceedings and would deal with it on behalf of the estate. If there is no Personal Representative appointed, you can still bring Court proceedings but also must seek an Order from the Court appointing somebody to represent the Deceased’s estate in the proceedings.

If no Personal Representative is appointed. meaning nobody is progressing the administration and dealing with your debt, other options are also available. Examples being:

  1. You can issue a citation against all those entitled to act as Personal Representative requiring them to either accept or refuse (renounce) a Grant of Representation. If all the potential Personal Representatives refuse, you can then potentially seek a Grant yourself allowing you to then settle the debt directly from the Deceased’s assets.
  2. Alternatively, an application for a Grant can be made under 116 of the Senior Courts Act 1981 which asks the Court to overlook those with the entitlement to otherwise take out a Grant. This application would need to be supported by an affidavit or witness statement which satisfies the Court that there are “special circumstances” making it “necessary and expedient” to appoint you as Personal Representative, rather than those with the legal entitlement. The basis likely being their failure to progress matters or deal with your debt over a significant period of time.

The Probate Registry will not automatically issue you a Grant, even if those otherwise entitled are not progressing matters correctly. If your application didn’t succeed, you could be out of pocket for your own legal costs and be ordered to pay the costs of anybody who has opposed it.

If you look to take out a Grant, you can seek that this be limited to you just collecting the Deceased’s assets and clearing specified debts. However, even if it was limited, you would still be subject to a number of strict obligations which could lead to issues if matters are not dealt with correctly. For example, if there is tax to pay or the estate did turn out to be insolvent.

We would therefore strongly suggest that expert legal advice be sought before making any application for a Grant, as a creditor.

If you are having issues recovering a debt from an individual who has passed away, please do not hesitate to contact a member of our specialist contentious probate team. David Wedgwood and Kimberley McGhie will also be presenting an in-person seminar, for professionals, on the topic of Grants taking place 24th November 2022.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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