my mother passed away 4 months ago. we are four sons. Two of the sons were made trustees and executors of mothers will. It seems neither executor wants to sell mothers house and finalise her affairs. The will stipulates that we are to get equal shares of her estate. One of the executors does not want to sell her house as it is earning rental income. He is the only one with access to her banking data and is not executing her will. what do i do next.
I have request progress as to the sale of the house and just get reasons for delay. He wont list the house with an agent and wants to do it himself.Cites needing to fix this or fix that which he never does. The other brother executor has not been able to get financial info from the other one. I think probate needs to happen. Is there some sort of timeframe executors must ad-hear too and can they be compelled to provide the estate finances.
Hi Welcome to JustAnswer. My first response will follow shortly. Please feel free to follow up if anything is not clear
An estate should generally be wound up within 6 months
If the trustees are not getting on with the jog, the ultimate sanction is to apply to the High Court to replace them
is that a lengthy and expensive proposition
It can be
do they need to have probate to sell the property. The oldest brother who had attorney of mums affairs prior to her death has stated that he does not need probate.
Perhaps the first step is to set up a family meeting to discuss this. You will need to get probate to sell however and he should get on with this
is the six months for winding up an estate fixed in law or just a should be
probate can only be applied for by the executors?
Probate should be sought within a few weeks of the death. The six month period is accepted as the usual period, and is also the period for creditors to make claims if there are any
The executors must apply-no one else can
is there a govt agency which manages probates or must an application be filed with the high court
There must be an application to the High Court by the executors. Nearly always a lawyer is instructed as the probate application is quite techical. Do you have a lawyer on the job?
no i am in aussie so its a bit hard and i am not an executor
The normal course is for the executors to instruct a lawyer
oldest brother claims we dont need probate. once again i believe he is stalling for unknown reasons. Other executor thinks that the other has a mortgage over mums house but as we cant get access to her bank details we just dont know. as far as family meetings the other brother seem to not want to confront him. whenever i do he talks like its all going to happen but the nothing does.
if after 6 month nothing happens then approximately how much would be involved to replace executors. would court costs be paid by both parties or from the estate?
I believe he is wrong if he says you do not need probate. For the house to be sold, it will be necessary to transfer the house to the executors, so that they can sell the property. I think you are correct that there is something going on. In my view you should instruct your own lawyer, who can investigate the title to the property and see if there is a mortgage. If necessary the lawyer could then take steps to replace the executors, and the court costs would be paid probably from the estate, although you could ask the original executors to pay the costs on the basis that they were incompetent and delayed winding up the estate, causing the need to replace them. In those circumstances the court would probably order them to pay, and this would come out of their share.
sounds fair. ball park range of cost?
Unfortunately the sort of litigation can get expensive, and you could be looking at 10 to 15,000. That is why I suggested setting up a formal family meeting, and you could even use something like Skype video to avoid the cost of travel. So if you had the New Zealand family around a computer with Skype, you could all discuss this. But what you have told me triggers some alarm bells, and where there is something dodgy going on, they are likely to avoid any confrontation where they might be found out
can any one investigate titles or just legal folks?
titles in New Zealand are all electronic, and unless you have access to the software, which you will not have in Australia it is easier to get a lawyer to do the search. It should not be very expensive however. You would want a copy of the title and the mortgage if there is one.
thanks for your input you may send me your contact details should i require legal services.
Unfortunately I am unable to accept work from the site. It is in the terms and conditions. I can suggest lawyers, probably in the city where the estate is situated.
i suspect the property was placed in a family trust which the two executors are the trustee's does that change the need for probate?
In Lower Hutt there is a specialised firm who do mainly court work called Thomas Dewar Sziranyi Letts at http://www.tdsl.co.nz/
I know that a number of them personally and they are professional and effective. Do you want other names? I have just seen your latest note, about a family trust. That could change matters, because the property would already be in the name of the trustees. In that case, if there are no other substantial assets such as bank accounts, shares or insurance policies valued more than $10,000, then probate will not be needed.
how does one find out about the value of her assets without access to the bank records?
neither of the non trustees are even mentioned in the trust but we are listed in the will
the value of the property is a matter of public record if you rely on the public valuation, usually obtained from Quotable Value but also usually held by the City Council. If your mother was quite old and in a rest home, it is possible that her money was used for the rest home fees, and there may also be a charge of the house for the rest home fees, although it it was on a family trust for long enough, that would not be the case. Normally a family trust would have a distribution date after the death of the settlor, and the children should all be referred to as beneficiaries
You would need to look at the trust deed to confirm this.
is the deed on public record?
No, so getting a copy may be difficult. If your brothers had nothing to hide, they should share copies of all of the documents, including the trust deed, bank records, and details of the estate.
i have tried in vain but just get told its all in hand go away you will get your share. i am becoming rather paranoid!
so in a nut shell i need to established title and any mortgages on the property.
ask againg for copies of trust and banking details.
regards XXX XXXXX you
LLB MMgt FAMINZ 32 years qualified as lawyer
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