Hi all
I would appreciate any advice/tips/pointers on how to help my brothers ex wife and children. I will be getting legal advice anyway so you have no responcibility whatsoever.
In the past 3 yrs ago-
My brother had a very serious car accident which incapacitaed him mentally and physically. He had recently given a close friend of the family(close enough to be called an uncle) power of attorney.
The original sus behaviour was he was the jp for the signing of the document. Unfortunately I was in a position where I was caught in a very bad business venture and due to the hours/stress I could not take anything more on. There was some poor decisions made and things like his children were using my brothers house as a holiday house(or it appeared as such).
When questioned his behaviour was very defensive. I thought he may have been acting dishonestly but other family members convinced me I may be wrong.My Brother passed away so it seemed to become a moot point(in that we thought that our sis in law would take control).
Now-
I recently visited my ex-sister in law to see my nieces(Lives oversee's and has poorish english) and tentively asked a few questions about the house/shares etc. She knows nothing about any of the estate, which worried me greatly. In 3 years she has recieved no finacial support whatso ever, no updates.I asked her to send an email to the administrator which she did. The reply email seemed very poorly written and was very hard for even me an english specking person to understand, while I may be paranoid but am concerned it was written badly (poorly worded/ no paragraphs etc) so to confuse.
The bad business decisions have cropped up again as there was no reference to any income generated from the renting of his house(approx rent 3yrs ago $400-$450p/w) so it appears that the house has been left untenented for over 3yrs + 2yrs(period incapacited since accident).
There is a lot more but I do not wish to write a novel/sob story for you all. I promised my sister in law I would look into this and I guess this is my the first step. Any advice would be appreciated ie how she can replace the administrator(if she wishes), how/who to get to ordit the financial records. The property is in townsville queensland, any help/advice is appreciated.
I work FIFO so please be patient as I cant get to the internet everyday but will try to.
While I can see that this family friend has done his best and still is trying to do so, but am very worried as human nature can be a terrible thing.
Thank you
Did your brother have a will? How long ago did he pass away? Has his estate been settled?
Did they live in the house?
Is your brother’s widow an australian citizen?
Did they separate or divorce? Why did your ex-sister in law return overseas?
Are there any kids from the marriage?
Thanks for the reply IP
I believe he did, but not sure if it was legal ie-witnessed( We were told everything would go to his children and being happy with this excepted it). It is only during my trip to japan that I found out the family friend had been made the admistrator and the girls and her had recieved nothing as yet.
The house has been left empty for almost 5 yrs and believe the reason given to my sister in law was that with the repairs needed(they cant have been extensive as it was practicaly a new house) and the insurance she would have to pay it wouldn't have been worth it. When I explained that even if it cost $5000(estimate, which I said I would pay) plus insurance, fees and other stuff she would still have made $10000 in rent on the 1st yr than more every year after.
She was a bit confused/upset and said no-one had explained that to her(just told it would cost her) money to rent the house.Yes they lived in the house together before the separation with their two young girls. They started to have problems which escalated into a separation, my brother let her take the kids and go back to japan as she had said she she had nothing to live for without them.
My brother passed away just over 3 yrs ago.
I am not sure if she was an australian citizen, I will have to ask?
My sisters and I are concearned that my brothers childern are being ripped off and wish to be able to give inforned options to our sis in law. Just as importantly give them in an easy to understand manner.
How can she replace the administrator(if she chooses to)- what paperwork, do you need to give the current administrator notice etc
How do you get all the financial history audited and what sort of cost, I know how long is a piece of string but I would like a ballpark figure if I'm going to offer to pay for the piece of mind.
Sorry to hear of your brother's sad passing.
There are many missing facts, so we could end up speculating which would not help you much.
A power of attorney ceases on death.
There must have been some formal will or court order to appoint an administrator.
It is quite possible that the 'friend' is out of their legal depth rather than fraudulent. However, this is still no excuse for a trustee.
Legal action could quickly use up what is left of your brother's estate (the administrator is usually entitled to use the funds to defend challenges to a will !!).
Split families and non-resident beneficiaries add to the complexity.
Best get some legal advice asap on what options you have.
Good luck,
Rob
nomad.
I am a solicitor with a knowledge of estates. I can also speak Japanese. If you want you can email me what you have and I will look into it.
An attorney has a duty to act in the best interests of the donor – so your sister in law may have grounds to sue if they have enriched themselves. As Rob says the POA ceases at death, but the executor or administrator of an estate also has a duty and they can be personally liable as well. If your brother passed away 3 years ago then the estate should have been wound up and distributions made – usually within 12 months. Could it be that hte estate has been wound up and there is money in trust for the children?
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
First off thanks to you both.
Rob, The power of attorney did cease on my brothers death(though he may have continued to manage things. In no way do anyone of us wish to contest my brothers will/wishes, he wished his daughters to be the benificiaries to his estate. His thoughts were that with a house here suppling a small income and the option for his girls to relocate here if they ever choose to go to university and have free accomodation.
Sister in law did appoint him as the administrator, this is an excert from the relivant email-
As you are
his next of kin, you need to think about who handles his estate.We have been advised by the
solibitor that this
matter could be handled by the Public Trustees or you could nominate ……….. to
continue to manage the estate.
Public Trustee will incur professional fees for accountancy ,legal and all clericalwork. ………… would be
entitled to be
paid for any costs incurred.This would be the most economical however the decision would be
yours.
Yuko I dont think really understood that she had options besides what was given to her.
Terry the estate hasnt been would up in fact the house has stood vacant since my brothers accident, except the periodic visits to keep the insurance valid. This was also a sticking point for most of my family as the house could have been rented for at least $400-$450pw. It was also offensive to some of us that his daughter would stay there at times.
For my self I'm not interested in suing this family friend unless he has been ripping my nieces off delibrately. I would like Yuko to be aware she has options in regard to the handling of the estate.
If you could pm me your email address and fee structure I would appreciate it.
Thank you
sorry not sure what happened just copied and pasted
Assets do not have to be sold off as such.
Check whether the house has been transferred to a testamentary trust as part of the will. Such a trust can operate for many years.
Two things bother me:
1) The property is not being rented … the trustee has a duty to maintain and invest the assets to maximise benefits for beneficiaries.
2) The trustee's relatives staying there … a trustee is not permitted to use trust assets for their own benefit (although they could also be a beneficiary under the trust).
I would take up Terry's offer to look into this because it is a messy area.
Cheers,
Rob
Thanks Rob
The two things that bother you bother the hell out of me.
Behaviours tell the story on a persons charater.
When my brother had his accident we had his second car at our place, it was the 1st car he bought when young and he loved it.After a while the family friend insisted it be sold. I pleaded for an extra 3 weeks as if I sold it how it was I would be lucky to get $500-$600.But with the extra time I could get things fixed and get a road worthy etc and get over $2000.
His exact words were "well why dont you buy it for $600 and make a bit of money yourself. This is while my brothers in ICU fighting for his life. My mother got the extra time and I got $2300 for it but that still leaves a bad taste in my mouth and I can no longer look at his actions in an innocent manner(I am aware that this my be distorting my perspective hence some help).Thanks again
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