NSW Executor's responsibilities towards property

Discussion in 'Wills and Estate Planning Law Forum' started by N Durant, 12 February 2020.

  1. N Durant

    N Durant Member

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    I need some opinion/advice, please. There are 4 executors (all siblings) to the will of our late mother. We are also the beneficiaries. The will states that all assets are to be divided equally in value to the 4 beneficiaries. The issue we have is that one of the executors/beneficiaries residing in a house left to the estate. There is a mortgage on this property which all of us are paying.
    There is no rent being collected at the time of our mother's passing (utilities and upkeep of the property were paid by the family member). 1year and 10 months have passed and decisions are required since we are still paying for the mortgage but not receiving an income from this asset. The family environment has turned toxic on this matter from an amicable relationship dividing up previous assets.

    The question is, do the other 3 executors have the right to request market rent to be paid whilst the 4th executor decides if they want to buy the house or sell it? And if we do have that right, what if that person refuses to agree as an executor or pay the rent?
     
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  2. Jacqui Brauman

    Jacqui Brauman Well-Known Member

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    A lot of this comes down to whether the beneficiary in the house is considered a tenant or not.
    Having a thorough strategy for dealing with this is also important.
    The executor that is living in the house has a conflict of interest between their role as executor and their personal interest in the house.
    Perhaps an offer can be put to the executor living in the house, that they only have 3 months to determine if they're buying the house or not. Rent will commence from the end of that period until they leave. (assuming there's no option in the will and no right to reside).
    You will likely need a different solicitor (the three executors not in the house) to write to the fourth executor, because the estate solicitor has a potential conflict of interest.
    At the end of the 3 month period in the offer, if the executor living in the house has not taken up the offer and doesn't look like leaving the house, then you will need to give them notice like you would to a tenant to vacate, and start proceedings to get them evicted if they still won't leave.
     
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    Paul Cott likes this.
  3. Paul Cott

    Paul Cott Well-Known Member
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    I couldn't have put it better than Jacqui above.
     
  4. N Durant

    N Durant Member

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    Thank you Jacqui & Paul
    I appreciate the responses. The executor/beneficiary was paying rent for a limited period whilst our mother was alive and has stopped paying after her passing, since then the executor contributions equal share to the mortgage. no formal agreement exists for rent. Having not done this before, it is a case of an executor acting in his best interests rather than adhering to the constitution of the will of an equal share of assets. Regarding your advice, Thank you, I will put forward the advice to the other executors of a time frame and then rent to be paid BUT can't the executor in question, veto this idea since we have to have a unanimous agreement on any decisions on the estate assets?
     
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