My brother died recently without a will, and is due to inherit a portion of my parents estate as well. I have been advised to join with my unreliable brother as co-executors of his estate. This brings to questions whether or not I should seek sole responsibility as executor, and whether I can claim my brother's estate in entirety, including his portion of my parents estate, as I was close to him whie my other extant brother was despised by him.
NSW Cascading intestate
- Thread starter Knightmare
- Start date
Dear Knightmare,
Breaking your questions down -
Q1 - should you be sole executor or be co-executors of your brother’s estate -
If you are worried about your other brother being unable to handle the responsibility, you should definitely be one of the executor. As to taking over as sole executor, there is no right or wrong answer - if sole, it would place the responsibility squarely on you and there could be emotional and legal concerns because if you did not do the job properly, if significant enough you could be personally liable. But if you are co-executors and there is disagreement, it could delay and if serious enough may have to resolve dispute in court, which would be expensive.
Q2 can you claim your brother’s estate in entirety including parents portion and the portion of the dispised other brother - if there is no will, the law of intestacy would dictate your share. If you believe there is evidence of your brother’s intention outside of a will, you need to seek legal advice if it is worth making an application to the court to adjust the your estate’s entitlement.
Q3 what do you mean by “cascading intestate”? This is not a commonly used phrase in Australian estate law - please note if this is not within NSW, the situation may be very different depending on the law of that state/country.
Good luck!
-Nighthelyn
Breaking your questions down -
Q1 - should you be sole executor or be co-executors of your brother’s estate -
If you are worried about your other brother being unable to handle the responsibility, you should definitely be one of the executor. As to taking over as sole executor, there is no right or wrong answer - if sole, it would place the responsibility squarely on you and there could be emotional and legal concerns because if you did not do the job properly, if significant enough you could be personally liable. But if you are co-executors and there is disagreement, it could delay and if serious enough may have to resolve dispute in court, which would be expensive.
Q2 can you claim your brother’s estate in entirety including parents portion and the portion of the dispised other brother - if there is no will, the law of intestacy would dictate your share. If you believe there is evidence of your brother’s intention outside of a will, you need to seek legal advice if it is worth making an application to the court to adjust the your estate’s entitlement.
Q3 what do you mean by “cascading intestate”? This is not a commonly used phrase in Australian estate law - please note if this is not within NSW, the situation may be very different depending on the law of that state/country.
Good luck!
-Nighthelyn
Nighthelyn: My brother was to have a one-third share of my parent's yet to be finalized estate. Therefore, it's not just his estate but a portion of my parent's estate that has to be settled. I'm not even aware of what related issues might arise....
Given my deceased brother detested my elder brother, how should I go about claiming his estate in entirety?
... and my brother has a section10 for assaulting his 100 year old mother. Does that exclude him from holding a "office"????
Dear Knightmare,
This sounds complicated.
“... and my brother has a section10 for assaulting his 100 year old mother. Does that exclude him from holding a "office"????” Section 10 is a no-conviction sentence meaning it is not considered of import, usually given to someone who has no other relevant prior offence (I am surprised how he got it for allegedly elder abuse, there was probably mitigating circumstances e.g. indicative self-defence). But that may in theory affect his inheritance from his mother’s estate (forfeiture rule potential in criminal law, a person cannot benefit from a will after harming the testator) but not necessarily the brother’s estate.
”… my deceased brother detested my elder brother …” this is legally potentially uninteresting - even if you can prove that the deceased brother feel this way, this does not necessarily give cause for a court to determine the deceased brother’s testimonial intention includes excluding said detested other brother.
Procedure is simple - the estate may need to be challenged, but you need legal advice on prospect of success (so far, I am not convinced, but I am not a specialist estate lawyer).
Good luck!
-Nightleyn
This sounds complicated.
“... and my brother has a section10 for assaulting his 100 year old mother. Does that exclude him from holding a "office"????” Section 10 is a no-conviction sentence meaning it is not considered of import, usually given to someone who has no other relevant prior offence (I am surprised how he got it for allegedly elder abuse, there was probably mitigating circumstances e.g. indicative self-defence). But that may in theory affect his inheritance from his mother’s estate (forfeiture rule potential in criminal law, a person cannot benefit from a will after harming the testator) but not necessarily the brother’s estate.
”… my deceased brother detested my elder brother …” this is legally potentially uninteresting - even if you can prove that the deceased brother feel this way, this does not necessarily give cause for a court to determine the deceased brother’s testimonial intention includes excluding said detested other brother.
Procedure is simple - the estate may need to be challenged, but you need legal advice on prospect of success (so far, I am not convinced, but I am not a specialist estate lawyer).
Good luck!
-Nightleyn