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James D. Ford
James D. Ford, Solicitor
Category: Australia Law
Satisfied Customers: 1601
Experience:  Consulting Principal at Nexus Law Group
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I am the Executor of my husbands estate. I have provided the

Customer Question

I am the Executor of my husbands estate. I have provided the bank with that document. He was and I am a long term customer with the bank....40 years. I have requested that they reduce the interest rate on his housing loan account in line with current interest rates. The answer is no, they can not do that because it would be a new contract...and I cannot sign on behalf of my husband. This was a verbal opinion and when I requested it in writing it was refused. My understanding is the my responsibilities as Executor is to manage the estate for the best fiscal outcome for beneficaries...and I have full legal rights to sign any document on his behalf.
Can you give an opinion.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Afternoon
My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.
Are you saying that you are seeking a hardship application?
Is the property owned jointly?
Do you have a solicitor acting in the estate?
Have they refused your request in writing?
Customer: replied 1 year ago.
No No Hardship just paying high interest rates when better rates are available.
No Jointly owned
No Solicitor
Refused to give their decision in writing.
Customer: replied 1 year ago.
Sorry that should read NOT jointly owned.
Customer: replied 1 year ago.
x
Expert:  Leon replied 1 year ago.
Good Afternoon
In who's name is ***** *****? Your late husbands?
Are you able to borrow in your own name to refinance the loan?
Customer: replied 1 year ago.
Yes in his name.
Yes I can but why would I want to. I have just refinanced my own loans with this bank and wish to do the same on my husbands loan as his executor. Bank is Bankwest.
Customer: replied 1 year ago.
are you still working on this...as i now need to leave this computer for 15 minutes
Expert:  Leon replied 1 year ago.
Good Afternoon
If you don't then you will have to sell the house.
you cannot continue to leave it in his name because if you do, then when it is sold you will be up for Capital Gains Tax
If the Will leaves the house to you, you are best to sort this all out.
Unless you have the right to refinance under the will you cannot do so and in order to do that you have to get probate.
Then you can only borrow in the estate name and the banks will not give the estate a loan unless it can afford to pay.
You have no choice but to apply for probate and have this sorted.
Doing nothing is not going to assist you in the long term it can cost you more.
You can take the bank to the Ombudsman for hardship issues and get a freeze for a time to get probate but that is the best you will get.
They do not have to refinance the loan in your husbands name and it is not possible as he has passed away.
I know this is not what you wish to hear but does it make sense?
Customer: replied 1 year ago.
Your answer disappoints me as it suggests that you have not read the text. As per my question
I have already been granted Probate.
I do not wish to borrow.
I simply want to reduce the interest rate in line with current interest rates.
There is no hardship.
Why do they not have to allow me to manage this account for the best fiscal outcome.
This is the responsibility of the Executor for the benefit of beneficiaries on the web sites that I have referenced.
Where is this written.
Expert:  Leon replied 1 year ago.
Good Morning
You cannot reduce the loan interest rate
In order to do that you have to refinance in the name of the estate or your name
There is no other way.
It has to be refinanced.
Even if your husband was alive he would have to refinance.
You are managing it as executor at the moment.
Your responsibility is to protect the estate and do what the will says.
If you want a lower interest rate you have to refinance. Either in your name or the estates. There is no other choice.
Who is the house to go to?
Customer: replied 1 year ago.
As Executor I am happy to refinance the loan in the name of the estate . ....can the bank refuse my instruction to do this...that is my question. and if they can where is that referenced.
The house proceeds when sold are to go to the deceased children. For a variety of reasons there is no plans to sell that property yet.
Expert:  Leon replied 1 year ago.
Good Afternoon
Can the estate afford to pay the loan? Does it have an income stream?
If the property is sold more than 2 years after the date of death you will be liable for CGT
So get a valuation of it now because you will have issues in the further.
How old are the children?
Customer: replied 1 year ago.
NO...but has rental income.
I have a valuation.
Adults.
My question remains can the bank refuse my request to refinance this loan as Executor.
Expert:  Leon replied 1 year ago.
If it cannot afford to pay the mortgage you will not get it refinanced in the mane of the estate.
Yes in these circumstances they can refuse
The estate cannot fund the loan
The same rules apply as per personal borrowings.
If the estate is not capable of paying the loan because it does not have enough income they can refuse.
Customer: replied 1 year ago.
The rental more than covers the mortgage repayments.
The loan is in fact in advance...so clearly the estate is supporting the loan.
Where is the reference that an Executor can not provide instructions in these matters and in these circumstances..the bank could not provide this is writing and I appear to not be having any success with my question to you. If someone can point to a ruling I would be satisfied.
Expert:  Leon replied 1 year ago.
Good Afternoon
You need to make an application to refinance the loan.
Be aware because it is an investment loan and for an estate you will not get the standard interest rates as the risk is much higher.
You can provide instructions but the bank does not have to do what you want. They assess the loan on their terms.
If the beneficiaries want you to distribute and your refuse then they can take it to court and have you removed as executor and seek costs
Customer: replied 1 year ago.
Again do you have a reference where an executor can be refused to deal with an estate..banks ot otherwise.
The beneficiaries are wanting the same legal opinion as me...they are as annoyed..
Look I think I might leave this as I am not getting the references that would support your opinion.
Expert:  James D. Ford replied 1 year ago.
Hi, perhaps I can assist. I understand that you have a long history with this bank going back 40 years. If they refuse your loan application to refinance.. then... My suggestion is to go to a loan broker, and determine what the best deal in the lending marketplace is for refinancing the property. If you obtain finance from another bank or lending institution... you can instruct your current bank to provide a payout figure - this they cannot refuse to do... You then organise for the new lender to payout the existing loan, and replace it with a new loan at a lower interest rate. If you are unable to find a lender in the marketplace who will provide a competitive interest rate.. then you will have confirmed that the current loan and interest rate are the best that can be secured in the marketplace.. and you will have met your duty as Executor to manage the estate for the best outcome for the beneficiaries. Kind regards, James