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NSW Executor of Will Delaying Distribution - Amount of Time to Fulfill Duties?

Discussion in 'Wills and Estate Planning Law Forum' started by ElizabethK, 17 May 2016.

  1. ElizabethK

    ElizabethK Member

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    I am co-executor of my late step-father's estate along with my step-brother. It is now 18 months since my father died and my step-brother has continually delayed fulfilling his duties as executor of will. Probate has now been granted and my step-brother has agreed to the sale of our father's property (the only asset).

    The will provides for the proceeds to be distributed equally between the four children of my mother and step-father. However, my step-brother wants the proceeds to go into a trust until such time as "all estate matters have been agreed upon". He refuses to clarify this statement and has enlisted his own solicitor to demand details of bank accounts, etc. which the solicitor handling probate has already provided.

    My step-brother still refuses to distribute any proceeds of the sale of the house to the beneficiaries but will not make it clear to me why he is doing this. I know that there is little chance of having him removed as an executor, but is there any provision under law for fulfilling duties as an executor in a reasonable amount of time or for providing any co-executor/beneficiaries with the reason for not doing so?
     
  2. Rod

    Rod Well-Known Member

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    There are provisions where if an executor is not acting in the best interests of the estate they are liable for the increased costs. You may want to make it known that you are prepared to go to court and have him pay the extra costs he is incurring due to obstinacy and unreasonable behaviour.
     
    ElizabethK likes this.
  3. Victoria S

    Victoria S Well-Known Member

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    Hi Elizabeth,

    There is what is known as the "executor's year" which has been established by various court judgments. This is basically a rule which provides that unless a contrary intention is expressed in the Will, interest will not run on legacies until one year after the testator’s death.

    After one year from the testator’s death, the executor should distribute the estate if he or she is able to do so; and if the executor has completed the collection of the estate, the beneficiaries are entitled to distribution within a reasonable period of his or her doing so.
     
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  4. ElizabethK

    ElizabethK Member

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    Thank you, Rod. My other concern is that as of September, we will become subject to capital gains tax. I think I will arrange a meeting with a solicitor to pursue this.
     
  5. ElizabethK

    ElizabethK Member

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    I felt sure there would be some sort of provision for timely distribution.

    Thanks, Victoria.
     
  6. MimP

    MimP Active Member

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    Hi Victoria,

    Your answer is interesting. My sister and myself are equal beneficiaries for the estate of our late Aunt.

    The executor was her accountant. Probate was granted Feb this year, all the accounts, except her tax are paid. He is in the process of transferring shares to us. He has told us he will be keeping $200,000 in a bank account until Dec 2017!

    When asked why, he has said 'in case of expenses, like tax'. There's no way the tax next year could be over $10,000, which only leaves his fee. (My Aunt stipulated in her will he is to charge a fee, not take a percentage of the estate).

    We have asked a couple of times could he give us an estimate of his fee, but he just ignores this.
    What rights have we to ask for the remainder of the money be paid before Dec '17?
     
  7. Victoria S

    Victoria S Well-Known Member

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    I would write him a letter demanding that the funds be released ASAP, based on the principle of the Executor's year, that if the funds to be distributed are not paid within 14 days then you will be applying to the court to seek orders compelling payment of the funds and seeking interest on your inheritance from him. Don't know how far it will get you but it might spur him to action.
     

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