QuoteReplyTopic: Will problems Posted: 29/May/2012 at 20:24
Hi all , I have just joined the forum ,
My problem is with my mothers executor 75 years old and in another state . My mother died 4 1/2 years ago and the executor will not complete , without a release of responsability, which would be no problem if everything went to program .
A simple will (money, car ,contents ,house) a million dollars , split equal 10 ways ,children and grandchildren
The exector allowed my brother sole access , to empty the house which he did .The furniture was sold after the house auction for 1K , we asked if it was being sold at the auction and told no ,we were not allowed to bid on it .and I have nothing from my mothers possessions
All monies were in , house sold with in 9 months but no completion .
Payment made to beneficiaries , at this stage executor had spent 70K and with held another 70K
Accounts not presented but after 3 1/2 years ,executors obtained an exemption , but still no completion.
There seems to be creative accounting , with an incorrect account sent to us 3 years ago ,a 6K funeral fund not included , 6 1/2K given to my brother for cleaning the house a 3 year old place.
We , have seen 4 solicitors no one could make any progress , so we went to the Commission of legal services ,hoping they may give them a nudge but heard today they can't help us , the lawyer is blaiming the executor for all wrong doing .
Where do I go from here , legal action will just burn up the rest of the estate defending the executors actions .
I money is missing and not accounted for is that Fraud
and ideas of what we should do , I don't want to walk away and let them steal from my mothers estate
I hate to sound glib, but welcome to estate law in Australia.
My recommendation would be to sign the release and try and put it behind you. There is no simple, fair, affordable solution.
http://changefpa.com.au Don't just complain go to your MP & demand the law is fixed.Not legal advice
Thanks , I wish I could walk away , but the filthy way the executor has acted prevents me doing that . The executors even sent letters , running our family down ,(written by my mother who was suffering from dementia) , to my children as an excuse for not following the will ,and told them she was doing what my mother wanted .
... the executor will not complete, without a release of responsibility ...
An executor simply cannot give you such an ultimatum. She has a duty to complete or she should renounce. If she doesn't renounce, she should be removed and called to account. Four and a half years and still going is too long to finalise a simple estate.
The costs of a successful action for breach of duties against the executor will not come from the estate but from her personally. The court does, however, have a discretion to award costs otherwise.
Agree with NotGuilty. The executor should complete or release herself from the role if she is not capable to do so. Four and half years is a long time.
Since you are adamant to fight on. You need a spexed estate solicitor to help you out, not just any solicitor.
Edited by khon - 30/May/2012 at 23:46
Personal opinion only, should not take it as legal advice
yup agree with Khon and Notguilty. I get it - we all do - and it is not fair right or legal.
Now how much time, effort, energy and money are you prepared to gamble on this pet cause? For principle - the lawyers' "ca ching" siren sound. Stay calm and prepare a detailed xysis. Neat tidy files etc. If it were me I'd go for it but that is just me and my particular mindset which values fairness and decency. Sadly this is not all that common as you may find.
Mum would hate to know she is paying tax and solicitors fees ,4 1/2 years after she died .
Our (my sister and myself) biggest problem is legal action will be defended with estate money , which is only two tenths ours , and the seven grandchildren need that money.
Well we had some Progress , after ringing every family member , aunties uncles , and the executors , family ,cousins and uncles explaining the situation was approaching five years . all of a sudden we got our final cheque !!
But the final financial statement is not explaining where $48.5K of the estate has gone ,and includes undisclosed cheques
one cheque drawn pre death dated, and presented post death (executor had power of attorney )
One cheque , date of death ,"no details avaliable" written on financial statement, $5,000 to executors,
no funeral fund $6K mentioned
The executors took control of trust account 19-8-08
The last disbursement was 8-9-08 ,
14-2-09 court order to complete ignored by executors The only expenses after that were solicitors and accountants = $20,920.37
With two seperate non estate solicitors , being paid a combined total of $2,268 in the last six weeks ,with no explanation as to why they were contacted and paid by the estate .
Can we sue the Executor for estate money spent because there was no reason not to finalise will four years ago , does anyone spexe in sueing Executors , and what court could be used ?
Mental
In total $48,867.83 has been spent needlessly ,with no explanation
If the administration of the estate was $49K and the estate was $1 mil that's only 5%. To regular mortals $49K is a lot but the court may find it well within the normal range. As has been previously said, how much of your life do you want to spend on this.
http://changefpa.com.au Don't just complain go to your MP & demand the law is fixed.Not legal advice
Goingbonkers $67K was the total , and as said a simple estate , money car house and contents and no commission , $47K is the amount they don't want explained . I have been told at the end , The executor , had to explain where the money in a trust account was spent .
As you are the beneficiary, you are entitled to have a look at the rocord.
Contact the accountant and the executor to have all financial years record sent to you.
As far as the funeral cost is concern,if you are not sure how much it cost, ask for a copy of invoice from the executor, as this won't show in the account nor in the tax return.
Personal opinion only, should not take it as legal advice
If the administration of the estate was $49K and the estate was $1 mil that's only 5% ... but the court may find it well within the normal range.
The executor can only take a commission if the will allows it, all the beneficiaries agree or the court awards a commission.
While the court can award a commission of up to 5%, I have never heard of a court awarding more than 3.5%, even for the most complex of cases. The average rate is 1.5 - 2%. This is consistant with the duties that an executor undertakes, that thou shall not profit from their undertaking.
The executor has a duty to keep meticulous records and you are entitled to call her to account.
Yes AOD , I agree . We send a please explain request ,to find out what the withdrawal amounts were used for ,we will see what happens , last time we sent the request ,before completion , they wanted us to pay $2K before they would tell us anything.
Well I have calmed down a little , I am wondering ,if someone can tell me how much of what has happened during the last five years with this Will , can be added to family ancestory records , on Ancestors .com , with out being sued ?
None, and I expect that if you try it will be removed by the owners of that site. they are not in the business of adding to family squabbles or getting dragged into family disputes.
I am NOT a lawyer. Anything said is NOT legal advice.
Please post your legal questions in a forum rather than sending a PM. Thanks.
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