Deceased Estate has not gone to probate 7 years after the death.

[Jake88]

Hi all,

It recent has come to my attention that a family member of mine was due to inherit there mother property and the son was to recieve half of everything in the will.

Nothing has happened as yet and when I started looking into this I realised that the estate has not gone to probate and that the mother ( executor of the will ) has already dispensed the money in the bank account which is illegal in itself.

So the real question I have is what effect will this have on the property as it is still the the deceased name 7 years after passing away ?
and additional legal issue's ?
Can the property be taken of the mother in question ?
Can the son make a claim for the property ?

Thanks to all who comment with some useful information.

 

[marg4000]

If this person is due to inherit then they should have a copy of the will.

Legal advice is the best option.
Marg

 

[Terry_w]

Interesting.

Mother could be personally sued for breaching her duties. Monies could possibly be recovered.

Someone else, usually another beneficiary could apply for letters of administration if the named executor hasn't applied for probate.

 

[pennyk]

Hi all,

It recent has come to my attention that a family member of mine was due to inherit there mother property and the son was to recieve half of everything in the will.

Nothing has happened as yet and when I started looking into this I realised that the estate has not gone to probate and that the mother ( executor of the will ) has already dispensed the money in the bank account which is illegal in itself.
.

So they were due to inherit their mother's property but the mother is also the executor of the estate?
How does that work?

As others have said, seek legal advice. The persons assets must be over $50K, and if the house was held as Joint Assets, then according to the info below its not counted towards that $50K. When my father died, we didnt need to do probate, but we did when my mother died, as all the assets were in her name.

From...
http://www.pringlelaw.net/articlepop.php?numx=5&keepThis=true&TB_iframe=true&height=550&width=750

Generally speaking, probate, or the probate process, involves collecting a decedent's assets, paying estate creditors and taxes, and distributing property to estate heirs/beneficiaries. Two factors are generally considered when determining whether a decedent's estate must be probated: 1) at death, did the decedent own any land (or minerals) solely or with another person as a tenant in common, and 2) does the decedent have "probate assets" that exceed $50,000 in value. If the answer to 1 or 2 is yes, then the person's estate must be probated. "Probate assets" are assets which get distributed through a person's Will. Probate assets are not assets which are owned in Joint Tenancy (with rights of survivorship) or that already have death provisions such as a beneficiary designation (example - life insurance policy), a POD (payable-on-death) designation (example - checking account), or a TOD (transfer-on-death) designation (example - an investment account).

 

[Jake88]

Interesting.

Mother could be personally sued for breaching her duties. Monies could possibly be recovered.

Someone else, usually another beneficiary could apply for letters of administration if the named executor hasn't applied for probate.

Is a letter of adminstration limited in any time frames as some time has passed ?
and the son is listed as a beneficiary but only in the case of the mother (excutor and main beneficiary passing away)
so would the son still be able to apply for letters of administration ?

 

[Aaron_C]

So they were due to inherit their mother's property but the mother is also the executor of the estate?
How does that work?

I would like to know the answer to that as well.

 

[Terry_w]

Is a letter of adminstration limited in any time frames as some time has passed ?
and the son is listed as a beneficiary but only in the case of the mother (excutor and main beneficiary passing away)
so would the son still be able to apply for letters of administration ?

Who died? Whose will is it?

Unless the mother died then the son wouldn't be a beneficiary.

 

[Terry_w]

http://www.austlii.edu.au/au/legis/nsw/consol_act/paaa1898259/s75.html

 

[chrispy]

So what you are saying is the Mother was the main beneficiary?

The son only inherited if the mother pre-deceased the father

The mother is obviously still alive, therefore the son has no claim

This sounds like a normal parents will

The property now belongs to the mother

Chris

 

[Jake88]

So what you are saying is the Mother was the main beneficiary?

The son only inherited if the mother pre-deceased the father

The mother is obviously still alive, therefore the son has no claim

This sounds like a normal parents will

The property now belongs to the mother

Chris

Even though the mother has taken no action on the will and all property including rates, power and water bills still listed in the mothers name ?

 

[Jake88]

Who died? Whose will is it?

Unless the mother died then the son wouldn't be a beneficiary.

the grandmother of a friend of mine passed away and it is her will.

 

[Terry_w]

Rereading the first post it appears the Grandmother may have died and the mother (ie grandmother's daughter) was executor and beneficiary with the child (the friend) due to inherit if the mother predeceased him.

If there is real property (ie land) then probate or letters of administration has to be applied for as titles need to be changed and court authority is needed for this.

If there is just bank accounts then it could be done without probate or LOA but this may depend on the bank's policy.

Usually things are supposed to be wound up within 12 months or so. But there is no law on this. But an executor has a duty to the deceased and the beneficiaries to do their job or to renounce the position. If they don't renounce then another beneficiary may apply for probate or LOA.

I am a solicitor specialising in wills and estates if you send me a copy of the will I can have a look at it for you.

 

[Jake88]

As the son has a very limited cash flow.

What would some recommended steps for him to take ? ( taking into account the he no longer has contact with his mother.

And in addition to all of this he has obtain serveral documents including bank account statements of the deceased which shows withdrawals after the death taking the bank account to zero dollars ( which should have gone though probate ? )

the rates are also in arrear's ( still in the deceased name )

 

[Jake88]

I would like to know the answer to that as well.

sorry for the confusion.

The grandmother has passed and the mother is the executor of the will

 

[pennyk]

its quite possible the mother has no idea what needs to be done when you are the executor of an estate. I would have had no idea if my brother had not been a joint executor.

Does the grandson have a copy of the will? or was it only a verbal understanding that he would get a share?

I'm not sure how they found out, but my mothers bank blocked her account as soon as she died. (we had access to it as guardians before her death). We could not access any money until we had probate in place.

First thing is to get some legal advice...

 

[Jake88]

its quite possible the mother has no idea what needs to be done when you are the executor of an estate. I would have had no idea if my brother had not been a joint executor.

Does the grandson have a copy of the will? or was it only a verbal understanding that he would get a share?

I'm not sure how they found out, but my mothers bank blocked her account as soon as she died. (we had access to it as guardians before her death). We could not access any money until we had probate in place.

First thing is to get some legal advice...

yes the grandson has copy of the will and death certificate.

and there was verbal understanding of him being left a portion of the property which is just he say she say so he will get no where with that ( i think anyway )

 

[marg4000]

yes the grandson has copy of the will and death certificate.

and there was verbal understanding of him being left a portion of the property which is just he say she say so he will get no where with that ( i think anyway )

"Verbal understandings" are very hard to enforce.

It is what is written in the will that counts, and the grandson has a copy so all should be clear to him.

Marg

 

[weg]

Is a letter of adminstration limited in any time frames as some time has passed ?
and the son is listed as a beneficiary but only in the case of the mother (excutor and main beneficiary passing away)so would the son still be able to apply for letters of administration ?

This sounds like it means that if the mother passed away BEFORE the grandmother, then the grandson would automatically become the beneficiary.

IF this is the case, as the mother is alive, the estate would go to her.

 

[willair]

Hi all,

It recent has come to my attention that a family member of mine was due to inherit there mother property and the son was to recieve half of everything in the will.


Can the property be taken of the mother in question ?
Can the son make a claim for the property ?
.

This sounds like the Mother had Power Of Attorney over the estate and also was first in line in the will,unless you have a copy of the will..imho..

 

[the helix]

This sounds like the Mother had Power Of Attorney over the estate and also was first in line in the will,unless you have a copy of the will..imho..

A Power of Attorney means squat once the principal dies.

The only people who can control the estate are the executor (by the sounds of things, the mother). As Terry says, if she is unable or unwilling, then the court can appoint someone else.