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VIC Settling Mother's Deceased Estate - Changing Locks to Property Until Payout?

Discussion in 'Wills and Estate Planning Law Forum' started by help101, 15 February 2016.

  1. help101

    help101 Active Member

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    My mother had been ill and my family and I moved in with her to take care of her before she passed, instead of putting her in a home. We had planned for a 2-year stay. Unfortunately, she died within 3 months of us moving in. My brother and I don't get along and now we are trying to arrange my mother's deceased estate. We have a lawyer and are back and forth trying to arrange to acquire (buy out my brother's half of the house). We are co-executors of will.

    My question is, although my brother is an executor of will and is entitled to half of the house before a buyout can be arranged, are we legally entitled to change the locks to protect our stuff? As above, my brother and I don't get on and I also do not want him in the house. Seems to be a grey area, but are we able to change the locks?

    He seems to be stalling and has given a time frame for everything to be sorted by. We have the approval to buy him out, however, he is not returning communication with the lawyer. He is the winner in this deceased estate. as he will receive close to $450K pay out from us and the estate. Meanwhile, since we have decided to keep the house and buy him out, we are the ones out of pocket.

    Any info would be appreciated.
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi help101

    You mention that you have a lawyer already acting for you in this matter.

    What has your lawyer (who has access to the matter file, and is fully apprised of the facts of the situation, and has been negotiating on your behalf) advised you regarding your legal rights?

    Is your brother self-represented? What timeframe has he set for everything to be sorted?

    Is your brother trying to increase the price you will agree to pay to buy the house?

    Has anything been agreed at all?

    I await your responses.

    Kind regards
     
    Tim W likes this.
  3. help101

    help101 Active Member

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    Hi James. Thanks for the reply.

    We have agreed as per independent evaluation to buy him out for his half of the estate. Both parties are sharing the same lawyer as up until now, we thought things were progressing well. He has set a date of end of March.

    Our lawyer did say we were able to change the locks, however, nothing was in written form, which I am hoping won't bite us. Our lawyer had all documents arranged and ready to sign. However, I can not contact my brother to confirm if he will sign. My brother has not communicated with the lawyer, if there is anything else he would like from the estate or the house we are currently living in.

    We are not comfortable with having him in the house, although technically he is still co-executor. How would that work if, for example, he wanted to come along and go through our parents stuff? Would he need to be here with police or lawyer?
     
  4. Rod

    Rod Well-Known Member

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    re: Locks. If the brother is living there, he will be considered an occupant/tenant. Does he have his own accommodation elsewhere?
     
  5. help101

    help101 Active Member

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    Hi Rod,

    We currently live there and are in the process of selling our old house. Selling to free up the money to pay my brother out. He does not live there so we are considered the occupant/tenant. Does that mean we have a right to change the locks? Or would that be a grey area?

    Also, would my brother be able to force an auction/sale of house if an agreement can not be signed off on, even though we are willing to pay him half of what the independent valuer has proposed?
     
  6. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi help101

    It would appear that everything is very close to being resolved and that there is an "in principle" agreement (that is subject to being formally signed)...

    This is good, and hopefully, the brother can be contacted soon, and will attend to sign the documents...

    I am very concerned to hear that your lawyer is acting for both parties.

    If the Property was being sold in the open market, this would most likely be fine.

    However, you are both negotiating, and this lawyer is in the middle. Tthe lawyer should ideally only be representing one party in the negotiations.

    It would then be clear that your lawyer is only acting for the brother, and can advise him directly and independently.

    If not, the brother should be encouraged to obtain his own independent legal advice prior to signing the agreement.

    You do not want the brother attempting to challenge this Agreement at some later date.

    With regard to the question of the household items? What does the Will say?

    Kind regards
     
  7. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Help101 - after consulting the Will

    If the brother is entitled to any of the household items...

    The whole situation of the access to the Property by the brother might be able to be diffused by creating an inventory (with photos) of household items, and including these as an Annexure to the Agreement to Purchase.

    This would mean that after settlement your ownership of these items cannot be challenged...

    If after seeing this inventory, the brother indicates that he wants certain items, these can be negotiated (and taken out of the Agreement to Purchase).

    I assume the only reason the brother would want to access the house, is to search for and obtain some of these household items? The inventory would hopefully remove this need.

    If you still need your lawyer to provide you with written advice stating that it is OK for you to change the locks, then please ask the lawyer to do this.

    Kind regards
     
  8. help101

    help101 Active Member

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    Hi James,

    Nothing in the will regarding household items, just that myself and brother are co-executors.

    Lawyer said we would need to work this out between ourselves, however, with the breakdown of our relationship, this is not possible. Although we are going to buy his side out, could he force the sale or auction?
     
  9. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Yes, subject to me confirming the VIC position, the general principle is that if both brothers cannot agree, he could force a public auction.

    Also, normally, for a sale to occur to a specific buyer, both co-executors would need to agree.

    Why are you not asking your lawyer these questions?

    Kind regards
     
  10. help101

    help101 Active Member

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    I think the lawyer is trying their best in the situation representing both myself and my brother. Understandably, they need to be careful what they say to both of us.

    Probate has been granted so there is some positives. We are just wondering if the changing of the locks will make things harder even though we are protecting our goods. If I don't agree on a forced sale/auction that would mean my brother will need to accept the buyout we are offering, which is exactly half of the evaluation that was obtained by a neutral evaluator?

    Thanks for your time James.
     

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