A Last Will & Testament nominates an executor to take responsibility of a person's estate when they die. However, if a person died without making a valid Will, also known as 'dying intestate', their next of kin usually assumes responsibility for the estate.
Where the executor has not paid the legacy to the beneficiary within 12 months from the date of death, the beneficiary is entitled to claim interest until the legacy is received.
Can the executor sell property without all beneficiaries approving? In some cases, the executor can sell the property after probate, if there's been no mention of keeping it in the will. However, because this is a sensitive situation, executors should take care to communicate with the beneficiaries.
The executors of a will have a duty to act in the best interests of the estate and the people named in it. So, an executor can't change the will without the permission of the beneficiaries. It is technically possible to make changes to a will by creating a deed of variation.
If the beneficiaries of an estate (or one of them) feel that an executor is failing to fulfil one of their duties, legal steps can be taken to compel an executor to do so or be removed from their role.
If there is unreasonable delay however you should write to the Executor, pointing out his obligation to keep all beneficiaries updated on the progress of managing the Estate. You can also demand that the Executor provide an “account” of the Estate which should outline how much you are due to receive.
Then under rule 44.2(2), if the court decides to make an order about costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court has discretion to make a different order.
You should consider a trust litigation attorney the moment you suspect a brother or sister is stealing your inheritance or assets from the estate. Often a trust attorney can quickly begin communications with the suspected sibling and/or their attorney, and resolve the theft quickly.
Theoretically, anyone can challenge a will, whether that's a sibling, or someone who doesn't appear to benefit on first glance, but may be a residuary beneficiary. However, contesting a will is not something you should consider without good reason.
In the absence of a surviving spouse, the person who is next of kin inherits the estate. The line of inheritance begins with direct offspring, starting with their children, then their grandchildren, followed by any great-grandchildren, and so on.
Other close relatives
Parents, brothers and sisters and nieces and nephews of the intestate person may inherit under the rules of intestacy. This will depend on a number of circumstances: whether there is a surviving married or civil partner. whether there are children, grandchildren or great grandchildren.
Sibling disputes over assets in a parent's estate can be avoided by taking certain steps both before and after the parent dies. Strategies parents can implement include expressing their wishes in a will, setting up a trust, using a non-sibling as executor or trustee, and giving gifts during their lifetime.
Any children, estranged or otherwise, are entitled to make a claim on their parents' estates if they feel that they have not been sufficiently provided for in the Will. To make a claim on someone's estate, you must apply to the Court.
There is no specific amount of commission an Executor is entitled to. However, the court will typically award a commission in a lump sum or percentage of the estate. Here is an estimate of the ranges: 0.25% to 1.25% of the value of transferred assets.
In order to discharge or remove an executor or an administrator of a deceased estate, an application will need to be made to the Supreme Court of Victoria under section 34 of the Administration and Probate Act 1958 (Vic).
This should be done by applying to the Probate Registry by a claim form supported by an affidavit. Once obtained, the inventory and account can be examined by the beneficiary in order to assess whether any further steps are needed in respect of the executor.
Who Can Challenge An Executor? You can apply to remove the executor if you're a beneficiary or a co-executor. A third party with an interest in the estate (such as a creditor) can also apply to have an executor removed.
The simple answer is no. The executor has the authority to hold the assets for a certain time for safe-keeping before distributing it. But he cannot withhold assets for any selfish benefit. In a few rare situations, the fee of an executor exceeds the value of the estate in which case he will have to take everything.
The executor has a duty to carry out their work in the best interests of the estate and the beneficiaries. If an executor breaches this duty, then they can be held personally liable for their mistakes, usually with a financial claim made against them, which can be substantial.
Can an executor of a will take everything? No. An executor of a will cannot take everything unless they are the will's sole beneficiary. An executor is a fiduciary to the estate beneficiaries, not necessarily a beneficiary.
Beneficiaries are also entitled to receive an accounting of the estate from the executor. This means that the executor must provide proper accounting for the estate's assets and expenses, in legal court format, to beneficiaries in a timely manner.
A toxic sibling relationship is a relationship that is unbalanced in its power dynamic and may involve sibling abuse and dysfunctional sibling rivalry. Sibling estrangement can be caused by parental favouritism, having immature parents, parental or sibling abuse and psychopathy.