NSW Power of Attorney - Standard Mourning Period Before Selling Estate?

[Ian Curtis]

How long do I have in the event of my mum's death to sell her house in which I am living (entitled by Centrelink since I was her carer for over 2 years and also lived here for over 3 years)?

Is there an official (or at least an industry standard "reasonable") mourning period?

My (only) sibling wants me to sign a contract agreeing to sell immediately upon Mum's death but I don't know how I will be coping when it happens. Dad died a long time ago. Mum is in a nursing home with dementia now and us two siblings have joint Power of Attorney.

 

[Arche]

Hi Ian,

There are a number of issues here.

1. Your POA will end on your mother's death.

2. Does your mother have a will, and if so, who is/ are executor/s? Who has the property been left to?

3. If there is a will, the executor usually needs to get probate before selling real estate. If there is no will, then someone will need to apply to the Supreme Court for Letters of Administration after your mother dies.

4.The timing of selling the house may not even be up to you.

5. Any such "contract" is likely pointless. Don't let your sibling bully you.

 

[Tim W]

I agree with the above.
For clarity, I would add

• Don't sign the contract. Just don't.
  
  
• Find out if there is a will and who the executor is.
  
  
• If you are eligible to view the will, then do so.
  In particular, see what, if any, specific directions
  your mother may have made about the house.
  (for example,
  • you may have been some sort of right to keep living there
    on an ongoing basis even after she dies
    (there are several ways to do this); or
  • she may have left instructions that the house be sold
    immediately upon her death; or
  • it may have been left in a testamentary trust
  • it may be left in whole or part to any grandchildren
    rather than to you and your sister)
    
• If there is no will, and your mother is now without the capacity to make one,
  then the Intestacy Rules will operate.
  (As per Mary W's item 3 above).
  While quite simple and formulaic, intestacy can cause
  a degree of human pain in the family that is better avoided.

How well do you understand the Power of Attorney in your case?
You say it's "joint" - does that mean...

• it is the kind where both of you must act together
  ("both signatures needed", so to speak); or
• is it the kind where either of you can act,
  without reference to the other?

Lastly, as to a "standard mourning period" or similar.
Outside of the time it takes to process a Probate Application
(or, as Mary W said above, to obtain Letters of Administration), no.
Unseemly, as it is, I have known cases where the family calls the real estate agent
the same day as the last parent dies.

 

[Ian Curtis]

Firstly, much thanks to both of you, Tim and Mary.

Don't sign the contract. Just don't.

Sibling/sister has arranged for us to meet on Wednesday at a legal aid office. I will help word the contract but I will take the contract to a lawyer before actually signing it. To not sign, it would get her all paranoid about me scheming to not move out of the house (eg by claiming more than half because I looked after Mum and lived there). I do not want more than half so signing a contract is fine... in principal.

• If there is no will, and your mother is now without the capacity to make one,
  then the Intestacy Rules will operate.
  (As per Mary W's item 3 above).
  While quite simple and formulaic, intestacy can cause
  a degree of human pain in the family that is better avoided.

It is simple indeed. Sister and me, split into half. Now you have me worried though.

How well do you understand the Power of Attorney in your case?
You say it's "joint" - does that mean...

• it is the kind where both of you must act together
  ("both signatures needed", so to speak); or
• is it the kind where either of you can act,
  without reference to the other?

Says: "If I appoint more than one attorney, then I appoint them jointly" (other options crossed out). All authorities so far however let just one of us sign (I don't think they really care).

Lastly, as to a "standard mourning period" or similar.
Outside of the time it takes to process a Probate Application
(or, as Mary W said above, to obtain Letters of Administration), no.
Unseemly, as it is, I have known cases where the family calls the real estate agent
the same day as the last parent dies.

I will have formal tenants in the meantime to help with house upkeep expenses and the rest would go into the estate's bank account (this is part of the upcoming contract my sister insists upon). It would be an "ongoing lease" agreement - tenant therefore are legally entitled to a month's notice before eviction so the nightmare scenario you describe should not occur.