Hi, there is a situation where there is a dispute which is escalating. There are two executors who are also the parties in the dispute. The executors are also the two beneficiaries. One of the executors lives in the home of the estate. They are denying access to the home to the other executor. They can't do that can they? as the other party is an executor don't they have a legal right to be able to enter the premises?
The executor in the home could have a conflict of interest between their own interests and their role as executor.
The executor in the home cannot exclude the other executor. Yes, the other executor has a right to be able to enter and secure the property on behalf of the estate.
The executor in the home cannot exclude the other executor. Yes, the other executor has a right to be able to enter and secure the property on behalf of the estate.
Indeed.
This is the basis of my question above.
I agree, so far as the scenario is something like "living with Dad at Dad's house".
Also in play is the question best described in everyday language as
"an adult who never left home" vs " an independent adult who moved back in to look after ageing parent".
However, if it wasn't "Dad's home", but rather, was a house owned by the deceased, but
occupied by one descendant as their own home, then it can be different.
For instance
- a residential tenancy is not always and automatically extinguished by the death of a landlord;
- In NSW, an executor's power(s) do not include a general right* to enter land without the consent of an otherwise lawful occupant (such as a tenant);
In such a case, an executor has the same obligations as a landlord to give notice, arrange reasonable times, etc,
just as the tenant still has their existing obligations in regard to enabling a landlord's "normal" right of inspection. - Certainly an executor has no power to force entry, nor to enter land in the absence of a lawful occupant, without that occupant's consent.
there has to be a Grant of Probate.
The Grant is the legal point at which an executor's powers commence.
In NSW, between the moment of death and the Grant of Probate, the estate vests in the Public Trustee,
and the executor's powers have not yet come into effect.
This can matter because an executor cannot do anything until they are formally in office.
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* there are the usual special circumstances - urgent repairs etc
Thank you for your responses. The one living in the property has been living there for about 5-6 years. They do own other properties but for various reasons are not able to/ will not reside in them. They have stated that it is their family's home. Just to be be clear they have consented to an activity taking place, they have just stated that the co-executor cannot enter the premises.
In this post, I'm using that words "landlord" to refer to the non-resident executor,
and "occupant" to refer to the resident.
It can be helpful to understand that when lawyers say "land",
the term means not just the physical ground, but also all and any buildings on it.
The term "an activity taking place..." has no meaning.
Less riddle-laden language will help.
Thing being, that "an activity" could be anything from entering to make repairs,
through to having a large party at the premises (eg your nephew's 21st in the large garden).
So, I'll take a wild guess here...
Are we talking something like
(which right, by the way, extends to the boundaries of the property, not just to the dwelling itself).
I don't see the landlord being right on either count in either of the above (wild-guess) scenarios.
I don't see here a landlord gets to "stretch" a consensual, conditonal, specific purpose entry
into a general right to enter the house.
Similarly, I don't see an executorhsip as creating a right to, say, enter and inspect without notice,
let alone to, say, have a private party in what is, effectively, somebody else's back yard.
and "occupant" to refer to the resident.
It can be helpful to understand that when lawyers say "land",
the term means not just the physical ground, but also all and any buildings on it.
I'm afraid it isn't.
The term "an activity taking place..." has no meaning.
Less riddle-laden language will help.
Thing being, that "an activity" could be anything from entering to make repairs,
through to having a large party at the premises (eg your nephew's 21st in the large garden).
So, I'll take a wild guess here...
Are we talking something like
or maybe
That's more like an occupant exercising their right to (mostly) exclusive use
(which right, by the way, extends to the boundaries of the property, not just to the dwelling itself).
I don't see the landlord being right on either count in either of the above (wild-guess) scenarios.
I don't see here a landlord gets to "stretch" a consensual, conditonal, specific purpose entry
into a general right to enter the house.
Similarly, I don't see an executorhsip as creating a right to, say, enter and inspect without notice,
let alone to, say, have a private party in what is, effectively, somebody else's back yard.
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An executor, by virtue of that office alone, does not, in the normal course of events,
have any rights or powers in excess of those of an ordinary landlord.
Just ask the question to which you actually want the answer, eh?
have any rights or powers in excess of those of an ordinary landlord.
Just ask the question to which you actually want the answer, eh?
Thanks and you answered it 
The one living in the house is within their rights to refuse entry to the other executor providing they allow a valuation to occur... that is allow other parties to go into the home. Sorry for being ambigious, I was after the legal standing here was worried the politics of the situation would cloud the issue.
The one living in the house is within their rights to refuse entry to the other executor providing they allow a valuation to occur... that is allow other parties to go into the home. Sorry for being ambigious, I was after the legal standing here was worried the politics of the situation would cloud the issue.One last thing - sharks parasites real estate agents
don't make valuations unless they are (personally) a licensed valuer (most are not).
They give a no promises guesstimate of what they think the house will bring if sold.
The next thing that will come up?
That will be that the non-resident executor will want "their share of the house", and attempt to force its sale.
don't make valuations unless they are (personally) a licensed valuer (most are not).
They give a no promises guesstimate of what they think the house will bring if sold.
The next thing that will come up?
That will be that the non-resident executor will want "their share of the house", and attempt to force its sale.
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