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VIC Brother Passed Away with No Will

Discussion in 'Wills and Estate Planning Law Forum' started by Barton Street, 30 September 2014.

  1. Barton Street

    Barton Street Member

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    My Brother recently passed away with no will in Victoria where he also resides. We have confirmed that both my Parents are next of kin.

    Issue #1 - Went to see probate solicitors on 02/09. My brother's personal details were provided by myself thinking that they would require them in order to provide us with a quote based on whether the estate might be complex in nature. We were advised that my brothers estate would be standard with no anticipated issues.

    At no stage in the meeting, which my parents were not present, was confirmation given to proceed and when the cost issue was raised, no definite figure was provided. Since found out that the solicitors commenced contact with all relevant institutions on 03/09 by informing them that they would be acting in the administration of my brothers estate. On 05/09, I received by email the cost schedule and the Acknowledgement Form for my parents to sign in order to retain them.

    My parents received the hard copy in the mail on or around 08/09. I have notified the solicitors that I wish for them to cease all work which they have done. Problem is that now I am having trouble getting written confirmation from them so that I can pass it to the institutions involved so that they can deal with my parents instead.

    Please confirm that I/we are not liable for any costs to the solicitors for any work which they would have commenced without the signed Acknowledgement Form.

    Issue #2 - my brothers estate is relatively simple (2 investment properties with existing mortgages which will be taken over by myself and youngest brother from my parents "selling" the properties to us, no spouse or dependents etc, my father and youngest brother share 50/50 in my brothers superannuation). My question here is that I am looking to organize the administration of my brothers estate by utilizing a will kit.

    I am aware that I will need to apply as Executor and Letter of Administrations for my parents. I am choosing this avenue as I wish for the administration process to be personal and not clinical if I had allowed solicitors to be involved.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Barton,

    1. The solicitor should have explained costs to you clearly and in a way that you understood. Further, if they were to start acting for you, you needed to sign a retainer (agreement to have the firm represent you) and they should explain to you what they will be doing and making sure what your instructions are. If they did not do this and have now issued you a bill, you may not be obliged to pay. They appear to have breached legal ethics and you can refuse the bill and explain this to them. If they do not retract the bill, you can complain to the Legal Services Commissioner: Making a complaint.

    2. Since your brother did not leave a Will, no one can deal with his property until the court (Supreme Court) appoints an administrator (like Executor but for those without wills). This is done by way of applying for a letters of administration. Once the court grants this, the named administrator can then deal with the intestate property (i.e. your brother's property) and dispose according to legislation. I am not familiar with any kits provided by Aussie Legal, but I do know that either way, you will need to apply to the court for a letter of administration. Who the administrator will be will depend on legislative rules to priority.
     
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  3. Tim W

    Tim W Lawyer

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    As if DIY Will Kits are not a bad enough idea,
    DIY intestacy is like night in Westeros* - dark and full of terrors.

    Seriously though..
    I agree with Sarah J above - until an Administrator** is appointed,
    nobody can lawfully deal in the properties (or any other asset in the estate).
    Makes no difference if the LPR ends up being one (or, unusually, but possibly both) of your parents,
    until they are appointed, they can't do anything.

    I am also concerned about the CGT implications for your parents of them "selling" the properties to you, when it may be within their scope as Administrators to gift them directly.... assuming of course that the mortgagee(s) agree,
    and do(es) not simply require them to be liquidated.

    Likewise, the loans on the properties will need to be re-written (what happens if the existing lender won't loan to you?), the loan insurance policies re-written (premiums may be different for the new borrowers than for your late brother),
    and the PPSR adjusted (although the lender may do this, and of course charge you a fee for it).

    Lastly - no, they probably don't have "shares" in his superannuation.
    What they might be is joint beneficiaries.
    And do you know if he had Life Insurance bundled with his super,
    and who the beneficiaries of that policy might be?

    ----------------
    * The mythical land in the novels and TV series "Game of Thrones"
    ** You may also see the term "Legal Personal Representative" - same thing.
     
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  4. Barton Street

    Barton Street Member

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    Thank you all for your thoughts on my issues.

    Issue # 1: Once the error was advised to them in an email from myself, I received a call from a Partner in the firm apologizing for his firm commencing work on my brother's estate without a signed Acknowledgement Form from my Parents (who are next of kin). Later in the afternoon of my post to Law Answers I received by email formal notification that the Firm was no longer representing my brothers estate AND no bill attached. I was chasing this notification so that I could advise all business which they had contacted to refer to myself going forward.

    Issue # 2: I am still undecided but am looking at utilizing a kit. Any other thoughts will be much appreciated.
     
  5. Rod

    Rod Well-Known Member

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    I've been in a similar position to you and it is not easy. Everything needs to be done properly. Started off DIY, about halfway through appointment as executor, got some legal assistance (minimal though) to ensure everything was being done correctly, then finished off everything with no legal assistance.

    Not for the faint hearted and requires you to learn a new vocabulary and understand some fairly arcane and obscure terms.

    Can be done but you need time. As Tim mentioned above, there are also potential tax implications to your proposal and some good tax advice should be sought BEFORE anything is decided. The wrong move and you could waste $thousands unnecessarily.
     
  6. Barton Street

    Barton Street Member

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    Hi Rod. Thanks for your thoughts.

    With the DIY kit, my parents (under VIC legislation) will apply for Letters of Administration as my Brother passed with no will. They are next of kin as he had no spouse or dependants. I have been advised not to apply as Administrator as this will only complicate things. Funds to be disbursed from my Brothers superannuation etc will most likely be directed into an account under parents and my name for easy access as my parents do not speak English well. I have checked with my Accountant on this issue and they have confirmed that this will not have any tax implications for me. Once my brother's estate has been sorted out, my family will be looking to engage professional advice to assist us. I have been told that there is no way around my parents being next of kin and "inheriting" my brother's assets (which will see them loose their pension). As for the 2 investment properties with existing mortgages on them, the intent is for another sibling and myself to each take them over. How we do this will depend on the professional advice we later seek. So for the time being, the foremost issue is to have my brother's estate processed with regards to his super etc.

    My brother's situation regarding sorting out his estate is pretty straight forward which is why I have chosen the DIY way. Was your situation fairly straight forward like mine? And what issues did you encounter? Would you go the DIY way again and which kit did you use? I would have limited access to a solicitor if required.

    Your thoughts on this DIY issue is much appreciated.
     
  7. Rod

    Rod Well-Known Member

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    I did buy the kit and it helped explain the processes that needed to be followed. Yes, I'd go down the DIY path again.

    I didn't face the same tax issues as you do and I'm not confident enough with tax and would have used someone to help with that aspect of the estate.
     
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  8. Barton Street

    Barton Street Member

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    What kit did you use? Am I allowed to ask this question considering this is a public forum? Thanks
     
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  9. Rod

    Rod Well-Known Member

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    You can ask, won't help though. It was over 10 years ago and I don't remember which kit I used.
     
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  10. Sarah J

    Sarah J Well-Known Member

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    Hi Barton,

    Intestacy rules are somewhat complicated because there are priorities as to 1) who can be the personal representative; and 2) beneficiaries. The Law Handbook (Victoria) has an informative page on intestacy. The main legislation in Victoria dealing with intestacy administration and distribution is the Administration and Probate Act.

    If you are planning to use a DIY kit, it may be worthwhile having a read of this legislation to understand the rules around property vesting and which forms to fill in and what documents must be shown.

    Further, note that superannuation does not follow intestacy rules. Superannuation companies have their own procedures and rules about who can inherit the benefits after the member dies. Best to contact the superannuation company directly for this.
     
    Tim W likes this.

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