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NSW Can Application for Probate Proceed without All Executors of Will Agreeing?

Discussion in 'Wills and Estate Planning Law Forum' started by Colint50, 2 October 2015.

  1. Colint50

    Colint50 Active Member

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    I am one of three executors of will and beneficiaries to my mother's will. My other two brothers have nominated a solicitor to proceed with probate, however I haven't agreed to having this solicitor do the work until they provide an estimate of the costs involved.

    They state that they are unable to provide this estimate as yet, but have supplied their costs structures...e.g. hourly rate, various fees, etc. I don't understand why they can't provide an estimate as they have the will details, which is basically a house that was shared with my mother and one brother, and this has been left to him, and then there is about $35k cash in the bank, to be split equally between the three brothers.

    I would think that given that this is all of the assets, that they could provide an estimate? Further to this, the solicitor then wrote to me to see if I would relinquish my role as an executor of will, but I refused.

    I have now received a letter to advise that the solicitor has been advised by my other two brothers to proceed with the application for probate on my mother's will, and they have asked if I want to join with them in this application. I have been given 4 working days to respond. (from date of email)...and still no response on a cost estimate to process the estate.

    Legally can they do this without all executors agreeing? I am not against the processing, I just don't want to give a "blank" cheque to the solicitor. If I don't agree to join the solicitor, what would the outcome be, assuming that they proceed and gain probate and then distribute the estate as per the will.

    My concern is that the brother who receives the house from the estate, in my opinion, should pay for most of the legal fees given that he is gaining a million dollar property. The cash component in the estate, may be all taken up with administrating the estate because of the house component and solicitor fees, and therefore little or no funds would be left to distribute to the other two beneficiaries, which in my opinion would be unfair.

    I was hoping to obtain some idea of estimated costs, then assess the figures overall, and trying to change the split of the cash component to perhaps only between two brothers, given the value received by my other brother with the house.

    I would greatly appreciate any help that can be provided...

    Many thanks
     
  2. winston wolf

    winston wolf Well-Known Member

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    If you can stop the application for probate would depend on the exact wording of the will. Be aware that your refusal to cooperate may cost the estate more than any saving.

    I think you are on the wrong track with your idea about the distribution of costs. The fact that one brother is getting a bigger share as he is getting the home does not mean he pays a bigger part of the costs. This may be unfair, but it is what the will maker decided when they wrote the will.
     
  3. Colint50

    Colint50 Active Member

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    Thank you for the response and I appreciate your time to respond...I agree that what you are saying may not be achievable (ie changing the distribution of the cash component), however the underlining thing is that the solicitor has not been able to provide an estimated cost to administer the estate. I don't believe that I should have to agree with using this solicitor if he can't provide this estimate, as my other brothers have done - it's like giving them a blank cheque.

    I have requested several times for the estimate, or what information do they require to do this estimate and how much that would cost. On each occasion, their response has been "they can't provide an estimate at this stage" and then only provide the charging rates and fees - I have no idea how much this all will cost...it could be $10K or $40K?
    I have no problem in using this solicitor at all, assuming that their costs are reasonable for what should be able to be laid out for me to consider.
    Do you think that is unreasonable?
    In looking at other legal sites, they generally mention that the solicitor should provide an estimate of the various costs involved, together with what areas may change due to certain issues, before any work commences.

    The other issue was whether they can 'go-it-alone' without me being party to the application for probate, given that I am one of the executors? The only reason I haven't agreed with this step as yet, is the lack of costs from the solicitor, not that I wanted to stop the application. I would much rather have a unified approach on all of this with my other brothers, so that my mother's estate can be finalised as soon as possible.

    The alternative is to just agree with their selected solicitor and join with them in the application, and let the solicitor charge whatever. At least the estate gets resolved, but not the outcome my mother would have wished for....
    All a bit unprofessional one could say.

    I would appreciate any other constructive comments, as my time to decide what action to take is very limited... thank you
     
  4. winston wolf

    winston wolf Well-Known Member

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    I agree with your position. I am just cautioning what extra cost may be generated to win the argument.
    Welcome to the bizzaro world of lawyer land.(I'm not a lawyer)

    Hopefully someone knows a procedural argument to put the the lawyer?
     
  5. Lawyering mum

    Lawyering mum Well-Known Member

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    The solicitor has to supply you with a reasonable estimate of their costs. It is unusual that they are refusing to. Whilst I practice in Qld (where we must give an estimate), the other states are generally the same.
     
  6. Rod

    Rod Well-Known Member

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    Bear in mind that it will only be an estimate with certain inbuilt assumptions. Can change and likely to change.
     
  7. bluetongue

    bluetongue Well-Known Member

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    In NSW, there is a scale cost for obtaining probate, this being dependent on the value of the estate. The solicitor should detail what the additional work to be performed is and provide a quote for this. As all executors ( if joint in the will) need to execute the affidavit that is filed in the court, your signature is required before the filing can occur.

    See Probate NSW FAQs - Legal Documents - LawAnswers.com.au
     
  8. Colint50

    Colint50 Active Member

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    Hi all. Thanks for the comments, most have agreed that the solicitor should be able to provide an estimate before proceeding, and of course, they would need to provide details of assets to ascertain the costs.

    I have agreed to them 'advertising' probate and the costs associated with this ($42) but have advised them that I require an estimate to process probate...and funnily, no response from them for over two weeks.

    All a bit of a concern...will see what happens after publishing period finishes, which is I think about now.
    Thanks again for all the comments.
     

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