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Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14361
Experience:  I did my law degree at the University of Queensland
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My ex husband has recently passed away. I am the executor of

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My ex husband has recently passed away. I am the executor of his will and the beneficiaries are myself and his brother who lives in the UK. I am happy to take over the estate and get probate etc, but he died alone at home and was not discovered for over a week so the coroner has not yet identified him - so there is no death certificate or anything so my hands are tied. His brother is providing a DNA sample to help with identification so hopefully within a few weeks this will be completed. He has a lot of debts including two mortgages with the ANZ. They had commenced legal action prior to his death and I have received correspondence from Gadens lawyers. I have explained the circumstances and asked them to stay any action to allow me time to sort things out. I have said that I will enter into an arrangement to clear the arrears and make payments but I have just found out that they have already posted a notice on the block of land saying they are taking possession. Is this legal - can they still continue legal action when the estate is in limbo? The properties (house on one block and a vacant block next door) will realise more than enough funds to clear all his debts if I have time to tidy them up - but if the bank forecloses and sells they will only be interested in a quick sale for enough to cover the loans which will leave other bills. We are in Western Australia.
Is this legal - can they still continue legal action when the estate is in limbo?

Yes, they can. However, it makes it harder for them to serve Court documents on him if he has died, so that should slow them down a bit. In the meantime I recommend you make a complaint about this to the Financial Services Ombudsman. Simply call the Ombudsman's office on (03) 9613 7366 and tell the person who answers that you want to "Lodge a Dispute". Be sure to use those words, or they may send you to the incorrect department.

The dispute department will ask you to fax or email or post to them a letter detailing what happened, what action you took to resolve this problem with your bank, and lastly, why you feel aggrieved. If you don't want to write this all down, you can explain it to the person on the phone who can take down all the relevant details, but that of course, could take a while to explain it all. Once the Ombudsman has the written complaint, they will investigate. The Ombudsman aims to resolve every dispute within forty five (45) days.

I have used their service myself on occasion, with amazing results. If the Ombudsman agrees with you, they have the power to make the bank give you the time you need. So that would be the best course of action for you to take here.

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