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Executor of Will Breaking the Law?

Discussion in 'Wills and Estate Planning Law Forum' started by Chloe2u, 27 August 2014.

  1. Chloe2u

    Chloe2u Active Member

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    Hi. My late mother passed away approximately 3 months ago in New South Wales. My sister who is Executor of the Will hasn't shown any of us siblings mum's will, even though she has told us all that we have a share in late mum's home. I've asked my sister formally in writing for a copy of the will, but to no avail. The executor has spent a big portion on herself on mum's atm card which makes me think she hasn't notified the bank or solicitor. I thought that her assets would be frozen and only she can withdraw money for funeral costs and debts owed by mum. Can the Executor remorgage against mum's house before or after probate? Or does she need permission from all benefactors if we have equal shares?

    Also does the Law protect benefactors before and after probate and for how long? She hasn't applied for probate and I don't think she intends to. If she does apply for probate, does the title to the Estate go in Executor's name after grant of probate? If yes, how are beneficiaries protected against misuse of power of Executor?
     
  2. Chloe2u

    Chloe2u Active Member

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    Executor and sister living in late mothers estate is that legal? When other siblings who are benefactors have no say and are struggling to pay their own rent. No application for probate has been made and I don't think she intends on applying for probate.She's spent all late mums money, and their talking about building on the back of the estate without any other siblings permission!
     
  3. Sarah J

    Sarah J Well-Known Member

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    Hi Chloe2u,

    Has the executor applied to court for a probate? Generally, courts allow 12 months from passing for the executor to obtain a grant of probate. Unless a probate has been granted, an executor is not legally allowed to deal with the assets and property of the deceased and may be held personally liable to indemnify any assets and property distributed if it is later found that this was not according to the final and valid will. Unless probate is granted, your sister can be held personally liable for distribution of your mother's assets.

    Has the will be lodged with the Supreme Court of NSW by either the executor or your mother before her passing? If so, you may apply to the Court for a copy of the will as a child of the deceased.
     
  4. Chloe2u

    Chloe2u Active Member

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    Thanks for th reply Sarah J , But no she hasn't applied for probate yet. I already called the Nsw supreme court and no application has been lodged at all.
     
  5. Sarah J

    Sarah J Well-Known Member

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    In this case, she should not be dealing with any property forming part of the estate. If she has, she may be liable personally for anything she has taken from the estate and may need to rectify/indemnify any changes or losses.
     
  6. Chloe2u

    Chloe2u Active Member

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    Hi Sarah J thank u for reply. If Executor is already spent money and planning borrowing money against the house and planning building projects it makes me wonder when probate is granted she will do what she likes if title of house and all assets go in her name as Executor and one of many benefactors. Does the law make sure that Executor is following the wishes of the deceased or do benefactors have to lodge a complaint within a certain period after probate. Also they can also act very slow and make benefactor's wait so how are we protected? This forum has really opened my eyes to the unfairness of so many trusted Executors. A lot of benefactors have to use a chunk of the estate fighting for what's rightfully theirs. It seems there should be more protection for all concerned.
     
  7. Sarah J

    Sarah J Well-Known Member

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    I would suggest contacting the Supreme Court of NSW, or checking their website, to find information about how to complain/prevent an executor from disposing the estate before probate is granted. As a potential beneficiary under the will and as the deceased's child, you should be able to apply to court for an injunction against your sister using any more of your mother's estate until probate has been granted and possibly initiate an action to recover what has already been disposed of.
     

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