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A new executor with two questions

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lozziloz View Drop Down
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Joined: 16/September/2009
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  Quote lozziloz Quote  Post ReplyReply Direct Link To This Post Topic: A new executor with two questions
    Posted: 16/September/2009 at 15:39
Hi there,

My Grandmother passed away two weeks ago. I am one of two executors - the other being my Uncle (my mother was removed as executor ten years ago due to a falling out with her parents). I phoned and ordered her will from her solicitor yesterday. My mother thinks that I am moving too fast and should not be worrying about any of this until after Christmas. From the bits I have googled, I feel there should be a little more urgency. I have not heard from my Uncle and am worried about calling him after being slapped on the wrist by my mother. Should I be moving on this or letting it slide for a while to give everyone time to grieve?

Secondly, my grandmother had Alzheimer's for six years before she passed away. She first went to a Nursing home for a few months and then lived with my mother for about 5 years and spent the last year in a nursing home. As she owned a property, she had to rent it out to pay for her own care. It is still tennanted. Is there likely to be a capital gains test applied to this? It was her and my grandfathers home for over 50 years.

lozziloz View Drop Down
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  Quote lozziloz Quote  Post ReplyReply Direct Link To This Post Posted: 16/September/2009 at 15:45
I meant capital gains *tax* - not test

MartinO View Drop Down
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  Quote MartinO Quote  Post ReplyReply Direct Link To This Post Posted: 16/September/2009 at 16:17
You need to get the will now, there may be things that need to be done right away and if you need assistance with the execution see a solicitor. You do not need to be in agreement with your mother or the other executor to act but you must only do what is written in the will.

Unlikely to be any capital gains tax under those circumstances as she owned the place prior to the introduction of capital gains tax. However if you delay finalising the estate it could become liable for CGT as she is no longer the owner.
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rambler1 View Drop Down
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  Quote rambler1 Quote  Post ReplyReply Direct Link To This Post Posted: 16/September/2009 at 16:18
I'd see a tax accountant. The question is is the home still her principle private residence or not and there are some tax rulings on this.

Your granny may still have the house as her principle private residence up to 6b years even if she has moved out and rented it.   
Luke 11 46: Woe unto you also, ye lawyers! For you load men with burdens that are difficult to carry, and you yourselves won't even lift one finger to help carry those burdens.

MartinO View Drop Down
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  Quote MartinO Quote  Post ReplyReply Direct Link To This Post Posted: 16/September/2009 at 16:34
Rambler is correct but the other factor is the date of purchase, the tax office site says, "Assets purchased before 20 September 1985 are generally not subject to Capital Gains Tax."
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lozziloz View Drop Down
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  Quote lozziloz Quote  Post ReplyReply Direct Link To This Post Posted: 16/September/2009 at 19:23
Thanks guys. I already have a photocopy of the will, and a certified copy is in the mail from my grandparents solicitor. There are no other assets left other than the house. How important is it to go to probate quickly. Does it matter? There is a clause in the will that says the trustees "can postpone such sale... for such period or periods they may think fit". Do we both have to agree to this or can one of us hold it up. I am very worried about this as my Uncle is very patriarchal and likely to do what he wants without much regard as to what may suit any of the others. To add to the stress, there are nine beneficiaries (two of which are my Uncle and me). I want to do this job properly as my grandparents instructed, with everyone happy with how everything goes. Is this possible?

MartinO View Drop Down
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  Quote MartinO Quote  Post ReplyReply Direct Link To This Post Posted: 16/September/2009 at 20:33
You can postpone the sale if you believe the market will improve, however the beneficiaries then have to wait longer and receiving their inheritance may be important to them now, particularly if any of them are out of work etc.

As far as going for probate is concerned check with the titles office in the state where the property is located as to whether that is necessary. I know in Queensland that where only realestate is involved the title can be transferred to the beneficiaries with a completed transfer form and the original of the will.

Should you choose to do this all nine of the beneficiaries would become the owners of the property as tenants in common, it could then be sold when you are all ready and each of you could take your share.

My brother and I were the executors of our mothers will and we attended the titles office completed the form and paid the concessional rate of stamp duty (just a few dollars) lodged and received the transferred title while we were there in less than an hour, and almost no expense.
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Please post your legal questions in a forum rather than sending a PM. Thanks.

lozziloz View Drop Down
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  Quote lozziloz Quote  Post ReplyReply Direct Link To This Post Posted: 16/September/2009 at 21:22
We are all in NSW. I would love for our situation to be so trouble-free. Anyway, it's early days and I don't know why I am expecting something bad to happen. I should speak to my Uncle and mother ( Mum is currently handling my Grandmothers affairs as she has done for the past five years). Thanks for your input!

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