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VIC Probate and Executor of Will - What Happens in This Situation?

Discussion in 'Wills and Estate Planning Law Forum' started by john3125, 7 March 2016.

  1. john3125

    john3125 Active Member

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    Dad passed away 10 months ago and left one of the sons as executor of will. There are 2 beneficiaries, me being 1 of them. Probate has been lodged and approved. When probate was lodged, I have noticed that not all of our dad's debts were included. What happens to these debts?

    Also, the executor of will wants to keep the house and buy me out. What happens in the situation? They have also mentioned I would have to wait 6 months after they decided to buy the house to distribute funds.

    Probate was lodged mid-November.

    Any help would be great.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi John,

    Not 100% sure about the late debts not being added to probate. I assume that as long as they are paid before the estate is distributed there should not be an issue.

    With regard to the executor (who I assume is also a beneficiary under the will) buying you out of the property: if you are agreeable to this, he or she must purchase it at market value. If you can't agree on it, it may require you to obtain an independent valuation. Also debts cannot be distributed until minimum 6 months after date of death due to risk of claims on the will. However the provision that you would have to wait 6 months after they decide to buy to be paid out sounds like a condition they are placing on the arrangement to suit themselves. So you can agree to disagree to that.

    As far as the actual distribution of the house goes, the distribution of the estate should be completed within 12 months, which is a reasonable time if there are no extenuating circumstances causing delay, however any dealing with the property after that such as sale of your share to the executor is not part of the actual distribution so there is no time limit on it. However I am guessing the executor would want to do it all at the same time as part of the same transaction for the sake of convenience.
     
  3. john3125

    john3125 Active Member

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    Hi Sophea.

    Thank you for your reply. The period of six months after probate lapses in mid-May. I understand the six month period after probate is granted, just in case the is a claim, but why should I wait a further six months for the executor to organise finance after this period?

    What is the point of filling probate with assets and liabilities, if liabilities can be paid before distribution? Don't get me wrong, I am more than happy to pay my share of liabilities, but considering it has taken the executor 6 months to fill paperwork, I am confused.
     
  4. Sophea

    Sophea Well-Known Member

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    You shouldn't have to wait 6 months for the executor to organise finance, but technically you cannot force distribution of the estate before 12 months.

    Filing an affidavit of assets and liabilities is to prove to the court that the executor has investigated the deceased's affairs and to evaluate the need for probate and appropriate fee to the court.

    Administering an estate is a big job and typically takes at least 12 months. Don't get too impatient. ;)
     
  5. john3125

    john3125 Active Member

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    Dad passed away 10 months ago. There are 2 beneficiaries, one being me. I am also the executor of will.

    The other beneficiary's lawyer has sent a letter advising they will be contesting the will. I spoke to the beneficiary and they said they had no clue about what I was saying. What happens now? Can this be cancelled?
     

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