VIC Executor plans to sell

[Peter L]

My mother passed away a little under two years ago. My brother and myself are the only beneficiaries (50/50) and our step father is the executor (which he has never declared to us). Our mother was the sole owner of the house. Our step father, who does not have life interest or similar, has been living in the house rent free since our mother's death. There has been no trust established for us. According to my brother, our step father is now planning to sell the house and buy another for himself to live in. I get the feeling that he does not intend to pay rent and I also suspect that he will put his own name (and only his) on the title for the new house.
Can he do this?

 

[AdValorem]

Hi Peter

This is what generally happens in the circumstances described:
1) Your stepfather, as the executor of the will, should apply for probate - has he applied yet?
2) After probate issues he has to transfer the house to himself as the executor (legal personal representative) of your mother's estate - has he transferred the property yet? You can do a title search online and find out: Land Registry
3) Then the executor must deal with the property under the terms of your mother's will.

Your stepfather may sell the house:

• if that is what your mother specified in her will or
• if your mother did not specifically gifted the house to her children.

If your mother gifted her estate, including the house, to her children then your stepfather will be breaching his executor's duties if he buys another property to live in.

You should take a copy of the will to a lawyer practising in this area and seek specific advice without delay.

Regards
Val

 

[Peter L]

Hi Peter

This is what generally happens in the circumstances described:
1) Your stepfather, as the executor of the will, should apply for probate - has he applied yet?
2) After probate issues he has to transfer the house to himself as the executor (legal personal representative) of your mother's estate - has he transferred the property yet? You can do a title search online and find out: Land Registry
3) Then the executor must deal with the property under the terms of your mother's will.

Your stepfather may sell the house:

• if that is what your mother specified in her will or
• if your mother did not specifically gifted the house to her children.

If your mother gifted her estate, including the house, to her children then your stepfather will be breaching his executor's duties if he buys another property to live in.

You should take a copy of the will to a lawyer practising in this area and seek specific advice without delay.

Regards
Val

Hi Val, thank you so much for your assistance. Our stepfather has been granted probate and has put the title in his name. There is no mention of selling the house in the will.
Upon reading the will again, It states that my brother and myself are 50/50 of everything. Our stepfather is not mentioned as a beneficiary of any kind.
There is an extra "power" that he has, which states that he can make investments as he sees fit. So I think that perhaps my stepfather is thinking of using money from the estate and his own savings. This will place my brother and myself in a worse predicament financially.
Considering the extra power, is he able to sell and invest in a home for himself?
Is it correct that if he sells the house that he must distribute the proceeds of that sale to the beneficiaries or is he free to do as he pleases?
Thank you again for all of your help.
Kind regards.

 

[AdValorem]

Hi Peter

With or without the extra power your stepfather cannot sell your mother's house to invest for himself.

If he sells the house he must distribute the proceeds to you and your brother, he has no other choice.

It is usual for the executor to consult with the beneficiaries before selling real property as you or your brother may wish to retain the house.

Your stepfather has an obligation to sell the property for the highest price.

Kind regards
Val