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SA Executor of Will Not Distribute Father's Deceased Estate

Discussion in 'Wills and Estate Planning Law Forum' started by xxshellsxx, 31 December 2015.

  1. xxshellsxx

    xxshellsxx Active Member

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    Hello,

    I have only found this website today after spending many, many hours scouring the internet for answers on behalf of my partner in regards to his late Father's Will and the actions of the Executor of Will.

    It has been a little over 3 years since his death and he did leave a valid Will. He was by no means a millionaire and it is not a complicated Will. Some simple monetary and personal belongings individually left to his grown children from his first, then second partner and the same for his grandchildren.

    His house and land have been left by him to his 2 sons (My partner and his older brother) to be shared equally. At that point in time, 3 years ago, my partner resided at his Dads' house and had done for over 10 years and continued to live there after his Dads death.

    The Executor came and took possession of bank books and paperwork and all the relevant documents including the Deeds to the mentioned property. There has been very little communication in the 3 years. The Executor passed all duties over to a Lawyer. Whenever my partner or his brother have made contact with the lawyer they are told that the law firm is working for the Executor and not for them.

    I thought it was all the same side??!!

    On the 20th of November 2014, a letter was sent to the property which was not addressed to any name only to the address. It was a letter from the Lawyer which stated that he was acting on behalf of the executor and had been instructed to take vacant possession of the property in order for the sale of the property to be finalised and that as there was no mentioned tenancy arrangement the eviction of any persons and all belongings was to take effect as of immediately. This was the first and only letter in regards to this. I am not an expert but I do not think that this is a legal letter. It was full of spelling mistakes and was not on a letterhead from a law firm but more of a computer printout made to look almost the part.

    I didn't think that anybody or corporation could Evict without warning? There are over 40 years of belongings on the property. There are also conditions as to what can be removed and what must remain because of Environmental Protection Agency guidelines. Which I have looked into and are not true.

    My partner and his brother have never wanted to sell the house. The executor, on one of the rare communications, said that it was up to her to distribute it because the two brothers would just argue and fight about it. She also said that it was now a bankrupt estate because of ongoing council rates and other costs.The only reason there are any ongoing costs with the estate is because the executor has not acted in a timely manner in the distribution and finalising of it all. She has tried to portray that the property is condemned and that the property has to be sold to cover the monetary gifts left in the Will. From what I have read, though, it seems that any other residual property is to be sold in this event before selling the main property. I might be wrong.

    At this stage though it seems that the sale of the estate is imminent with or without the approval of the only 2 beneficiaries of the main estate. The Executor tried everything to not have to go through Probate but with there being real property involved eventually she had to. As far as we are aware the probate side of things has been done.

    Last but not least, approximately 6 months ago the executor started telling my partners brother that my partner had stolen between $30,000 and $40,000 from their Dad before handing over all his bank accounts. This is completely untrue and without any proof. If money was missing would it not have been noticed much sooner than this?

    All this is doing is causing us to go round and round in circles as we don't even know where to begin because we don't even really know what, how and why this is happening! To us, it appears as though the executor intends to let the deceased estate decrease in value as much as she possibly can and we do not know what to do about it.

    This is a lot of information and I have tried to break it down as best as I can. Just from reading through this forum I can see that many other people are facing issues that they never imagined possible after the death of a loved one.

    If anybody can point us in the right direction we would greatly appreciate it.

    Thank You in advance
     
  2. Sophea

    Sophea Well-Known Member

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    Hi,

    There is a lot in your post so I will try to address as much as I can. Firstly, yes tenants have rights and must be accorded the prescribed notice period prior to eviction. I would definitely question anything that is not on a solicitor's letterhead if it purports to be from a solicitor.

    When a will is distributed, specific gifts are given priority to general cash gifts, so if the house is a specific gift to your partner and his brother that cannot be sold to fund cash gifts. It gets priority.

    The executor has a duty to carry out the administration of the estate in a timely manner and to preserve the value of the estate. If she has been negligent in this regard then you can apply for court orders removing her as an executor or court orders requiring her to take certain action.

    I would get your own lawyer and get them to look into it for you, because it seems there is a lot going a bit pear shaped at present.
     
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  3. xxshellsxx

    xxshellsxx Active Member

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    Thank you for your reply, Sophea.

    When the brother approached the law firm in regards to the eviction letter sent by them he was again informed that the firm worked for the Executor and not for them and that they were not at liberty to discuss matters. When the Executor was informed that he had visited the lawyer she made contact and told him not to go to the lawyer because it costs the estate so much money for each time any contact is made, even informed him that the one time he phoned to speak to the lawyer the cost incurred was $350 which is charged to the estate!

    Our main concern is the financial cost for us to have a lawyer, as my partner and myself have other pressing legal matters which have been ongoing for 18 months and continuing well into the coming new year - (I will be posting more legal questions in this forum in the appropriate sections very soon. I am not a lawyer and I am mentally exhausted from trying to understand and research Acts, Codes, Regulations, Guidelines and so on for the past 18 months for my partner and my own legal issues. This Forum has become my everything since finding it!)

    What I am really needing to be certain of is that there definitely is grounds for us to be questioning the actions of the Executor and just by reading through these posts I know that things are not being done as they perhaps should be in our camp!
     
  4. Rod

    Rod Well-Known Member

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    And you can sue her if she has been negligent or stolen any part of the estate.
     
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  5. xxshellsxx

    xxshellsxx Active Member

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    Hi Rod,

    It seems that the Executor has breached her duties in regards to preserving, protecting and administering the estate diligently but nothing has been stolen by her but she also has not ensured that the now empty property is secure and insured. The main concern is, we are unsure if the executor or the lawyer acting on her behalf are able to sell the property without my partner and his brothers knowledge and consent? They have the Deeds and every other document and the benefit of having a lawyer for the past 3 years to find loopholes wherever they possibly can to benefit the executor.

    The property was valued at $140,000 a year or two before Dad's death at the request of the Environmental Protection Agency who purchased most of the residential homes surrounding this property. There are still 4 or 5 homes which are occupied in the area who also had no interest in selling their homes to the EPA.

    I am not sure how long a valuation is deemed valid or up to date but the Executor arranged for a valuation to be done for the property within the last year, and although we have not received any paperwork or been privy to any information other than the property was valued, the executor has passed word around that as a 'vacant and soon to be condemned property', the valuation is considerably lower than the initial $140,000 and will be sold for less than $70,000.

    Her reasons for the lower second valuation is because there is nobody living there so there is no need to relocate anybody which is why the first valuation was higher to relocate the residents. From what I have researched, that does not seem likely.
     

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