Estate Administration Assistance
The client is the carer and Enduring Power of Attorney for her sister, who is also an executor of their late mother's will. Due to the sister's diagnosis of a degenerative condition, she is unable to perform her duties as executor. The client seeks to understand if she can act on her sister's behalf, particularly concerning the sale of the family home, as stipulated in the will. The estate is located in Victoria, Australia, and involves the interests of multiple siblings. The client and her sister currently reside in the family home, which their mother's will dictates should be sold following specific conditions.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkAm I allowed to speak on my sister’s behalf as an executor given her current incapacity?
In Victoria, an Enduring Power of Attorney allows you to make decisions on behalf of your sister regarding her financial and personal matters. However, acting as an executor of a will is a distinct legal role that typically requires court appointment if the named executor is incapacitated. You cannot automatically assume her role as executor solely based on the Power of Attorney. You would need to seek legal advice to apply for a grant of probate to be appointed as an executor or co-executor by the court. Consider consulting a solicitor to navigate the legal process.
How can I ensure that the sale of the family home complies with our mother's will and estate planning requirements?
To ensure the sale of the family home complies with your mother's will and estate planning requirements, confirm that all conditions stipulated in the will have been met. Consult a solicitor to clarify any ambiguities in the will. Additionally, obtain a property valuation to set a fair market price, and ensure all beneficiaries are informed and agree with the sale terms. Lastly, engage a licensed real estate agent to manage the sale professionally.
What are the legal implications of acting under an Enduring Power of Attorney when managing the estate affairs on my sister's behalf?
Acting under an Enduring Power of Attorney in Victoria allows you to manage your sister's financial and legal affairs, but it doesn't automatically empower you to act as an executor of the estate. While you can handle her personal and financial matters, the role of an executor is distinct and requires specific authority. It's essential to ensure that any actions taken, such as selling the family home, align with the will's terms.
Are there specific steps or documentation required to formally step in as an executor if my sister is unable to fulfill her role?
To formally step in as an executor in Victoria when your sister cannot fulfil her role, you need to apply to the Supreme Court of Victoria for a grant of letters of administration with the will annexed. This process is necessary if she does not voluntarily renounce her role as executor due to incapacity. You will need to provide evidence of her incapacity to evaluate the situation.
How does my sister's diagnosis affect her legal responsibilities and rights as an executor of the will?
Your sister's diagnosis may impact her ability to fulfil her legal responsibilities as an executor due to potential incapacity to make informed decisions. In Victoria, executors are required to act in the best interests of the estate. If she lacks the capacity to do so, she might be unable to perform her role effectively. This incapacity can necessitate the appointment of an alternative executor if specified in the will or through court intervention.
