Could you please advise me what would happen to a will in the following hypothetical scenario relating under Irish law?
The deceased person did not declare all cash assets when applying for the old age noncontributory pension. The full old-age pension was subsequently drawn for a number of years.
Upon the death of this person, it was identified that at the time the State pension was granted, total cash assets were underdeclared.
By the time of the person’s death, all cash assets had been transferred to joint accounts. How can the State now recoup these costs?
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Can the overpayment be recouped from a joint account, which is now in the sole name of another person (following the death of the individual who received the pension overpayments)?
Additionally, can the State look to recoup the overpayment from the primary residence, which is the only asset left in the estate even though it was not taken into account for the purposes of considering eligibility for the pension in the first instance? Ms MJ
The interesting thing about hypothetical cases is that they are rarely entirely hypothetical. And I suspect your scenario is closer to the real world than you might be letting on. But no matter.
The noncontributory State pension is a social-welfare payment made to people who do not have a sufficient PRSI contributions at retirement to qualify for a contributory pension.
The maximum weekly payment currently stands at €289, not far short of the €289.30 payable to those in receipt of a full State contributory pension.
You’ve clearly done some research on the means test this person will have had to undergo in their application for a noncontributory State pension.
As you say, the family home is not taken into account in the means test, although if it had delivered rental income, either through being rented out entirely or in part, any rental income over €14,000 – the level of tax-free income available under the Rent a Room scheme – will be taken into account in a means test for someone in receipt on the noncontributory pension unless the person would otherwise be living alone, in which case all rent is disregarded.
That aside, pretty much all income is included in the pension means test, apart from social welfare payments.
In terms of savings, the first €20,000 is disregarded. Thereafter, the next €10,000 is considered to yield €1 in income per week per €1,000 of savings. Savings of €30,000-€40,000 are assessed as yielding €2 of income per week per €1,000, while anything above €40,000 is seen as giving you €4 per €1,000 in weekly income.
The situation you outline is one of fraud – the deliberate misstatement of assets in a means test as part of an application for the noncontributory pension. That certainly presents a problem.
The executor(s) of the estate have a legal duty to gather all the assets in the estate and to assess all liabilities that must be paid ahead of any distribution of net assets by inheritance under the estate.
Failure to perform that function properly can leave the executor(s) legally liable to claim.
Aside from that, the Department of Social Protection habitually requires three months postmortem to assess whether there has been any overpayment to the deceased that requires repayment.
Of course, if they were lied to, they could hardly be expected to pick it up at that point. That does not absolve the executor(s) in their duty.
Once notified, the department will require repayment of any overpayment as a result of fraud. It can also prosecute, although that’s hardly a realistic prospect when the person engaging in fraud has died.
The fact that the cash assets have been transferred to a joint account does not necessarily ringfence them. Some joint accounts pass to the other named account holder under survivorship but others do not – especially those of elderly people where the second named person is not a spouse but some other family member who was given access to the account for convenience of meeting the deceased’s bills and living expenses.
In survivorship, the accounts will transfer automatically and are not part of the deceased’s estate for the purposes of probate. Otherwise they cannot be transferred to the other named account holder outside the probate process.
In any case, even if the cash savings are no longer accessible, the Department of Social Protection would have a claim against the assets of the estate – in this case, the family home – before it is passed on to anyone under the will. The fact that the property was not included in the original means test is irrelevant.
Any outstanding debts must be repaid, and if that requires the sale of the property in the absence of the cash being found some other way, then so be it.
The ultimate question, I suppose, is whether the department – having been hoodwinked thus far – discovers the fraud. Probably not. But are you – or more accurately, the executor(s) – prepared to take that chance? Guess wrong and it will be they who will be liable for any repayment down the line.
There’s really no reason why they should take that chance and it is, in any case, an abuse of their role once they are aware of the fraud.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com with a contact phone number. This column is a reader service and is not intended to replace professional advice
