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QLD Can a Bankrupt be an Executor of a Will?

Discussion in 'Debt and Bankruptcy Law Forum' started by Lesley T, 23 November 2014.

  1. Lesley T

    Lesley T Member

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    I was unfortunately bankrupt just before my mother died, I am named as joint executor in her will, is it still possible for me to be an executor even though I'm in bankruptcy? The rest of the family doesn't want my sister who was named joint executor to be executor on her own as she has become estranged from the family and won't speak to anyone
     
  2. Sarah J

    Sarah J Well-Known Member

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    There are no restrictions under the Bankruptcy Act for a bankrupt to act as an executor of the will. However, any fees due to you may go toward your trustee in bankruptcy.

    You may be challenged by the beneficiaries as to your suitability for executing the will (e.g. on the ground that you are unsuitable for the position). However, this is rare and will depend on your beneficiaries.

    In short, a bankrupt person can be executor (or co-executor) of a will.
     
  3. Lesley T

    Lesley T Member

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    Thank you Sarah, my sister without even talking to me has had a solicitor send me threatening letters demanding I renounce as executor immediately on the grounds of my bankruptcy and if I don't sign the form they will apply to the supreme court to have me removed and then make me pay for the costs. I am heartbroken and very stressed as it feels like they are treating me like a criminal
     
  4. Sarah J

    Sarah J Well-Known Member

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    Hi Lesley,

    I would speak with a local community legal centre or lawyer as I am not an expert in QLD wills and probate law. It is usually a beneficiary or creditor who seeks to remove a co-executor. However, in some states, a co-executor can also make the application. If so, the applicant (your sister) will need to satisfy to the court that you will not be able to handle the administration properly. You can get statements from the beneficiaries and your family supporting that you are a capable administrator and that they do not wish for your sister to be the sole executor.

    In relation to costs, the usual practice is that the losing party pays the other party's costs on a party/party basis (usually 2/3 of the actual costs incurred). If you lose and do not agree to costs, you can always bring the matter up at taxation (when a taxing master goes through costs and determines what should have been spend at each stage). If your sister loses the application, she will need to pay her own costs plus yours on the same basis.
     
  5. Lesley T

    Lesley T Member

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    Thank you so much for the advice
     

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