11 September 2024
After someone's passing, the estate is settled, and the heirs gain insight into the extent and composition of the inheritance. What can you do if money has disappeared from the estate?
There may be suspicions that a portion of the assets of the estate has vanished. For instance, the deceased may have sold a house shortly before passing away, but the sale proceeds are not (anymore) in the bank account. A second mortgage may have been taken out, but the amount is no longer there at the time of death, or unusual (ATM) withdrawals or transfers may have occurred. What can an heir do if part of the assets seems to have disappeared?
It is essential for all heirs to know what the estate consists of and what ultimately needs to be divided. All heirs can demand that an inventory be drawn up at the start of the estate settlement. An inventory is a document describing the assets and liabilities on the day of death. It is a description of the estate.
Furthermore, an heir is entitled to all information regarding the estate. This includes information and documents from before the death, such as bank statements and tax returns. Bank statements can reveal if there have been unusual (ATM) withdrawals or transfers. Tax returns can provide information on the evolution of assets over the years.
In case of unusual (ATM) withdrawals or transfers, the initial question is whether this money has been wrongfully appropriated. The principle is that everyone is free to decide what to do with their assets during their lifetime. Therefore, not every transfer or withdrawal necessarily indicates wrongful disappearance of assets. It could be that the deceased made (conscious) significant expenses or intended to gift the amounts.
If it is established that assets have wrongfully disappeared, there are various options to recover them. Under certain circumstances, an heir can revoke a gift. For example, in cases of fraud or coercion. However, the heir faces a challenging burden of proof. The burden of proof lies on the heir to demonstrate that the conditions for revoking the gift have been met.
If a gift was made under abuse of circumstances, the situation may be different. This occurs when someone is induced to make a gift while the other person knows or should know that this individual is being influenced by special circumstances to make the gift, such as an emergency, dependency, or inexperience. The law contains a different burden of proof for this situation. If there is no notarial deed for the gift, the burden of proof generally lies on the recipient of the gift. This means that the recipient must prove that there was no abuse of circumstances in the gift.
There may also be a suspicion that funds have been wrongfully taken by a third party. For example, if someone had authorization to manage the bank account before the death and transferred amounts. Under certain circumstances, this person may be asked to provide an account and justification. Whether an account and justification must be provided and what requirements it must meet depend on the facts and circumstances. If an account and justification are not provided or are insufficient, it may result in amounts needing to be repaid or damages needing to be compensated.
If assets have been concealed by one of the heirs, there are other options available. You can find more information on this topic in our blog Concealing a part of the inheritance.
If money has disappeared, there are possibilities to recover it. An attorney has various legal avenues to investigate suspicions of missing assets and, if necessary, recover the assets. Do you have questions about this subject? Feel free to contact us.
