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NSW Letters of Administration and Bankruptcy

Discussion in 'Wills and Estate Planning Law Forum' started by Lisa Stewart, 24 June 2015.

  1. Lisa Stewart

    Lisa Stewart Member

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    My fiance/de facto husband passed away very suddenly in February 2015. I am absolutely devastated at losing him. We were to be married in April this year. He died without a will. With the help of my solicitor I started to apply for letters of administration but had to stop at the yes or no question that stated "I am not an undischarged bankrupt". I went into bankruptcy in November 2012. Not because of any irresponsible money management but due to a home my hubby and I purchased. We were both forced to relocate with our jobs (something which could not have been for seen at the time of purchasing home) only 2 years into our mortgage. We could not afford to rent our home out then rent ourselves on relocation to Sydney and the market had dropped 8% at the time we had to sell. This saw the value of our home at $60,000 less than our purchase price. It was a case of very bad luck and extremely bad timing.

    Now I have explained the reason for being forced into bankruptcy because I dont want any negative comments about it. Some people seem to think that only idiots who dont know how to manage money are the ones who go bankrupt but that is quite often not the case. My trustee in bankruptcy has told me that AFSA itself does not have any issue with me applying to administer the estate but the application states what I have mentioned above.

    Just wondering if anyone else has come across this or can give me any thoughts as to how I can hopefully get around this. Its only to administer my hubby's estate and I am quite capable of doing that. Otherwise I know my step daughter who is 21 will apply. Not only did he ignore 99% of my husbands constant attempts to stay in touch, I think she rang him once in a 6 month period and that was only because she wanted money. She is very immature and nowhere near responsible enough to administer the estate and I have no doubt that whilst she may be the one signing away as administrator, her mum (my hubby's ex wife) will be the one calling the shots. She will do whatever her mother tells her to do. My husbands superannuation will be paid to his estate and be controlled by them if I cant apply for administration. Legally I am the person most entitled to be administrator but I dont seem to be allowed too because i am still a bankrupt.

    My 2nd question is if they have super money paid their way, am I able to contest this and claim my legal share as the "spouse of the deceased"? Under the rules of intestacy I am entitled to a share. I just wonder would this be difficult to contest or am I putting myself through unnecessary worry?

    My solicitor has written 2 letters to stepdaughter's solicitor asking for a response to our last letter to them, but the solicitor has not or will not answer/reply so we dont even know what they may be up to.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Lisa,

    Did your solicitor say that your bankruptcy precluded you from acting as administrator? Is it possible to apply for the NSW Trustee and Guardian to be appointed as administrator or for you to be appointed as a joint administrator with someone else?

    Worst case scenario - if your step daughter does apply and obtain letters of administration she would normally need to provide an administration bond to act as a security that she will comply with her obligations to pay the rightful beneficiaries under the estate.

    And no matter who is responsible for administering the estate, as spouse of the deceased, (provided he was not still married to his ex-spouse in which case you may have to share this amount), you would likely be entitled to $350,000, the deceased's personal effects and half of the remainder of the estate. Your step daughter would likely be entitled to anything left over.
     
  3. Lisa Stewart

    Lisa Stewart Member

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    Thanks for your reply Sophea. The declaration in the affidavit to apply says "I am not an undischarged bankrupt". I cant sign the declaration because of that question. Thats where I'm stuck. I wish there was a way to chat in private on this site.
     

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