8 Comments Wills, probate, letters of administration, powers of attorney
You are going down the wrong track.
If you believe the hospital did not treat your late sister correctly, see a medical negligence lawyer with whatever evidence you have to see if you have a case, if more is needed he will have ways to obtain this.
It's going to cost you money to start this action, you are unlikely to recover this unless you are successful.
Since the estate has been distributed there is nothing in it but the executor still has power over the "estate".
ie if assets were found then the executor would have control of them. If the hospital will release the records to the executor or you on his request that would be the simplest path.
If the executor refuses, as he may, then you would need to look at other options.
So the executor is not obligated to act, but I cant see any conflict in assisting. Remembering there are no funds in the estate if they are needed.
Thanks very much for clarifying the estate issue. I can see now that the estate is not extinguished. I agree that it would be in everybody's interest if the executor would authorise the release of the records but I also agree he is not obligated to act. I also agree there are no funds in the estate if they are needed. I intend to approach him again and would appreciate knowing the answer to the following question regarding risk:
Are there circumstances where an estate that has been fully distributed to the beneficiaries can still incur costs eg be sued and if so, who would pay those costs eg the executor? Are there any legal cases where that has occurred that I can check?
Are there circumstances where an estate that has been fully distributed to the beneficiaries can still incur costs eg be sued and if so, who would pay those costs eg the executor?
If the executor generated cost they would be liable. I think if anybody tried to sue a properly wound up estate they would fail at the first hurdle.
If you looking for the estate to sue the hospital I would refer you to citizen-joe answer.
Otherwise have al ook here.https://www.legalaid.qld.gov.au/Find-legal-information/Relationships-and-children/Domestic-and-family-violence/Elder-abuse
Thanks for all the feedback - it's all very helpful to clarify my thinking.
I have no intention nor does anyone else to sue the hospital.
That won't achieve anything and would just waste money.
What I am trying to do is to find information that will help my brother give his consent as executor to my access to my deceased sister's medical records so I can verify what the hospital is telling me - it's a case of "trust but verify".
Denying me this access is causing the hospital and the investigating body problems - they are unable to convince me of their case and so it isn't possible to get to a resolution and so on it goes. I am trying to get the hospital to recognise what they did was wrong (if that's the case - it's my contention) and fix it so it doesn't happen again.
So I am looking to see what risk there is for my brother in granting me access ie eg can the estate be sued by anyone. In a practical sense, I don't think there is any risk at all but I would like someone to confirm that or expand on it.