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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42632
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I am a 1/10 benficiary in a NSW will with 5 other siblings

Customer Question

I am a 1/10 benficiary in a NSW will with 5 other siblings (each 1/10 share) and an elderly step mother (4/10). The Estate is my father's who died in 2013. The Executors are the Stepmother, (whose son is a QC), my eldest brother and a sister. The stepmother challenged the will to increase her share, and after many QC's, Barristers, 2 days in Supreme Court and close to $200000 spent in legal fees, sh went back to the original will of 4/10's but still the matter still lingers. It seems there is not enough money to pay out the stepmother without selling the house which my other siblings want to keep and there have been holdups due to the lawyer she hired to act for her with probate etc. They are conspiring to offer her a deal with the remaining cash and then the children, myself included own the house. I do not wish to become a part owner in the house with my siblings, with whom I share love. 2 of whom have long standing drug issues, and who have never owned property and the other brother, The Executor, who is not above being dishonestly to get what he wants. He said he would be me out, but I am worried than he can either change his mind, or for some reason not complete this action in a timely manner. I have offered to buy the house at above the estimate to end the matter but I know my siblings do not want to sell as they know the property is worth more than the valuation obtained by my brother. I have sort some indication of process, value and time, but my brother will say nothing further. I live in WA. What can you suggest?

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. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.Did you have your own Solicitor in this matter?
Customer: replied 1 year ago.

No, I do not have legal representation myself.

My brother and sister have a lawyer for the Estate.

There is another lawyer who was hired by the stepmother to deal with the estate and then the step brother and a fleet of other QC's and barristers were brought in for the trial.

I believe my fathers estate after cash removed by my stepmother prior to my fathers death of $200000, and legal fess must be sitting around $1 million but that is only a guess.

Note in correction to my original information, it should be with whom share no love. I am not in social or familial contact with my siblings.

Expert:  Leon replied 1 year ago.
Is the costs associated with your stepmother's case are excesses then these can be challenged.as a beneficiary you are entitled to ascertain what the value of the estate is and if you have concerns you should have your own solicitor act and request accounts from the court forcing the executors to provide details of where all the money has gone.Did the court award costs to be paid by the estate for all parties?
Customer: replied 1 year ago.

They paid an agreed portion of the stepmothers case.

I am sorry, I meant after legal fees I think the estate is now holding about $1 million.

Expert:  Leon replied 1 year ago.
Good Afternoon,Do you know whether they have advertised to distribute the estate?They need to do this before they can distributing New South Wales. You have a right to us questions about the estate and when the estate is distributed you also have a right to see where will the money has gone. Unfortunately it is a wait and see position and only once the estate is to be distributed can you make demands about where the money has gone and question them. After distribution if you have queries about the money you can then make an application to the court for accounts where the executor is required to provide to the court full details and particulars of where the estate funds have gone.I would suggest that if you cannot get information that you seriously consider getting your own representation because I think you will require it once the estate is distributed. I hope this makes sense and is of assistance?
Customer: replied 1 year ago.

As far as I know, no distribution yet.

I think I need my own lawyer.

Expert:  Leon replied 1 year ago.
you should send a letter to the executors and the solicitors acting for the estate and if they do not respond advising when the estate will be distributed then you will need to get your own solicitor to act for you. I'm sorry I cannot give you anything more positive. If there is nothing further thank you for using my services. If I have missed anything, or you have any further questions please let me know If there is anything else in the future please do not hesitate to ask. Please do not forget to leave positive feedback. RegardsLeon
Customer: replied 1 year ago.

But can I ask if is there nothing I can do to prevent myself becoming a 1/6th owner in property as my share of my fathers estate?

I have told my brother he must deal with me the same as the stepmother, but I believe he will cut a deal with her to give up her role as an Executor.

Is there nothing I can do to prevent this?

Expert:  Leon replied 1 year ago.
If the executors decide not to sell the property then all the beneficiaries would be noted as an owner of the property in the shares as per the will.If the will says that you are entitled to a 1/10 share you are unable to get a greater share unless there is an amendment through the courts or an agreement by all the parties with a deed of family arrangement being entered into an approved by the court.If the executors decide they have to sell the property then you would be entitled to your correct share of the cash derived after payment of all costs, in accordance with the will. You cannot cut a deal with your stepmother. She went to court and an agreement was reached at that point. That agreement if it became orders of the court commends the will and the shares must be divided in accordance with that. Nothing can be done outside of that.If there is something done that is not in accordance with the will or the court orders, in the trustees and executors can be held personally liable to the beneficiaries for non-compliance.I hope this makes sense and is of assistance.
Customer: replied 1 year ago.

My brother and sister as Executors are planning to offer her cash to give up her Executor role and be paid out leaving just the property in the Estate for the siblings, that is why I offered more money than they were telling her the property was worth.

I think they still plan to give her an approximate 4/10 and that will leave the remaining house and I believe that is how I will come to be in a six share situation.

I don't believe they even have proper insurance coverage on the property as it has been vacant since October with no now aware of what the insurance will cover.

Can I put a caveat on the land preventing it from being transferred to me until it is clear how I am to be affected?

Expert:  Leon replied 1 year ago.
Good Evening. No she should have renounced her executorship when she contested the will. She cannot hold the position as executor if she contests. They cannot do that unless all beneficiaries sign and agree.I would place a caveat on the estate and you should get a Solicitor to assist you.