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Parents Died - Sell Dad's Shares Without His Will?

Discussion in 'Wills and Estate Planning Law Forum' started by rina, 13 June 2014.

  1. rina

    rina Member

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    My dad died in april 13 and then mum Dec 13. I am going through an estate planning solicitor with mum's deceased estate which is slow going, but I have been told they cant sell my dad's shares because they are still in his name. They need his will but for some reason its missing.

    Can you tell me how can they be sold without his will? The solicitor im using doesn't explain things just takes ten years to do anything.
    Please help
     
  2. Owens Lawyers

    Owens Lawyers Well-Known Member

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    Hi Rina,

    Under section 1072A of the Corporations Act, the personal representative of a deceased shareholder has the same rights as the deceased shareholder. This is what is called a replaceable rule so you would need to check that the relevant company has this rule in its constitution.

    Who would be the personal representative is the relevant question. If there was a will and probate granted, it would be the executor. If there is no will and letters of administration are granted then it would be the person granted administration.

    You may not necessarily need to apply for letters of administration if the value of all assets in the estate is small. How you go about applying where there is a lost will depends on what state you are in.

    Owens Lawyers
     
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  3. rina

    rina Member

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    Thank you for replying. When dad died he had been in a nursing home for six yrs so his will was made probably 20 yrs before hand. When He passed nothing was done no probate or anything cause everything except shares were in both names mum was his administrator/ guardianship. Mum just carried on as normal.its just now since she has passed its a problem with shares. Mum had will and probate and everything else has been done buy solicitors. I dont know its just doing my head in that this solicitor we have doesnt explain things properly. We r in Victoria.
     
  4. Owens Lawyers

    Owens Lawyers Well-Known Member

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    I'm a NSW lawyer so I'm not sure if my answer is comparable in Victoria. Your mum would have been his personal representative before she died, as under rules of intestacy the spouse in most cases is left everything. If a will had been found then the personal representative would have been the executor of that will.

    Whomever is the executor of your mum's estate would now be both her (and possibly his) personal representative. It may be a good idea to contact the company to enquire about what evidence would be required to transfer the shares to your mum's executor.

    Owens Lawyers
     
  5. rina

    rina Member

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    Thank you for replying and answering that I could understand.
     
  6. Owens Lawyers

    Owens Lawyers Well-Known Member

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    My pleasure. Let me know how you go.
     
  7. winston wolf

    winston wolf Well-Known Member

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    Do you know who is the executor of you Mums will?
    Most likely you Dads share was or should have gone to you Mum. So her executor/administrator holds power.
    Do you have a copy of her will?
     

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