VIC Living & caring for elderly mother - what happens when she dies?

[Jillbeanstalk]

I'm currently caring for my elderly mother. I have lived with her for 2+ years since she had a fall and was unable to live alone. I am on the carers payment and have no property of my own. My question is: when mum dies, legally how quickly do I need to move out?

I am one of five siblings and there has been murmurs from some siblings that I will be expected to move out immediately. Are there any steps I can take to ensure a reasonable time to move out? I'm thinking a couple of weeks or a month at most.

I'm not an executor. The two executors don't get along (which will make things more interesting) and everything will be divided equally.

 

[Tim W]

I see that you mentioned executors.
So, there is a will?

A few suggestions....

1. Remember that an executor doesn't formally take office
until the grant of Probate is made.
An executor's role doesn't come alive until the Grant.
That can take weeks. Those weeks might be enough for you to find somewhere.

2. The executor(s) don't have the power to give you notice until they are actually in office.
The "clock" on any notice you may be given doesn't start until at least that moment.
Nothing they say before taking office, including any advance notice that they may purport to give you, doesn't have any legal weight.

3. Perhaps you've heard of the "rental crisis" ?
Expect the market to be very tight indeed. Especially for a Centrelink client.
You may need to factor that in.

 

[perjury]

Hi Jill,

If you have been a primary carer for your mother for over 2 years, you are entitled to continue living in the residence for up to two years based on federal legislation.
More here 4.6.3.70 Exempting the principal home - care situations | Social Security Guide

Since you mentioned executors, there is a will.

The probate of a will can be a very long process, particularly if there is discord between beneficiaries.

Do not be surprised if it takes a year of more.

Have you seen the will?

Cheers
Greg

 

[Jillbeanstalk]

I see that you mentioned executors.
So, there is a will?

A few suggestions....

1. Remember that an executor doesn't formally take office
until the grant of Probate is made.
An executor's role doesn't come alive until the Grant.
That can take weeks. Those weeks might be enough for you to find somewhere.

2. The executor(s) don't have the power to give you notice until they are actually in office.
The "clock" on any notice you may be given doesn't start until at least that moment.
Nothing they say before taking office, including any advance notice that they may purport to give you, doesn't have any legal weight.

3. Perhaps you've heard of the "rental crisis" ?
Expect the market to be very tight indeed. Especially for a Centrelink client.
You may need to factor that in.

Thank you, this is exactly the kind of information I've been after.

Yes, there is definitely a will so that will buy me the time before Probate is granted. I have an idea of what I want to do but it is difficult to set some things in motion because I don't have a timeline. I may be here for years, or months.

 

[Jillbeanstalk]

Hi Jill,

If you have been a primary carer for your mother for over 2 years, you are entitled to continue living in the residence for up to two years based on federal legislation.
More here 4.6.3.70 Exempting the principal home - care situations | Social Security Guide

Since you mentioned executors, there is a will.

The probate of a will can be a very long process, particularly if there is discord between beneficiaries.

Do not be surprised if it takes a year of more.

Have you seen the will?

Cheers
Greg

Hi Greg,

thanks for that info. I don't want to stay here for two years but I also didn't want to have to be out in a week. This gives me real peace of mind that I can pack up and move without having to rush it. I thought I would be pushing it to ask for a month!

I have seen the will so I know who the two executors are, and that all siblings are getting an equal share. Mum has said several times that she wishes she could give me more and I have declined because the money would not be worth the harassment/potential legal action.

I'm completely ignorant of the process of probate - I only know about it from watching Fisk. How can the discord between beneficiaries slow the process? Also if it's a slow process, does that mean my cousins were doing a bodgy when they sold my aunt's house within a month of her death? It's a bit of a segue, but I know one of my siblings will be expecting a similar scenario for mum's house so it will be good to be able to explain why it's not going to happen.

 

[perjury]

I see that you mentioned executors.
So, there is a will?

A few suggestions....

1. Remember that an executor doesn't formally take office
until the grant of Probate is made.
An executor's role doesn't come alive until the Grant.
That can take weeks. Those weeks might be enough for you to find somewhere.

2. The executor(s) don't have the power to give you notice until they are actually in office.
The "clock" on any notice you may be given doesn't start until at least that moment.
Nothing they say before taking office, including any advance notice that they may purport to give you, doesn't have any legal weight.

3. Perhaps you've heard of the "rental crisis" ?
Expect the market to be very tight indeed. Especially for a Centrelink client.
You may need to factor that in.

2. The executor(s) don't have the power to give you notice until they are actually in office. - what are you talking about?

 

[perjury]

Hi Greg,

thanks for that info. I don't want to stay here for two years but I also didn't want to have to be out in a week. This gives me real peace of mind that I can pack up and move without having to rush it. I thought I would be pushing it to ask for a month!

I have seen the will so I know who the two executors are, and that all siblings are getting an equal share. Mum has said several times that she wishes she could give me more and I have declined because the money would not be worth the harassment/potential legal action.

I'm completely ignorant of the process of probate - I only know about it from watching Fisk. How can the discord between beneficiaries slow the process? Also if it's a slow process, does that mean my cousins were doing a bodgy when they sold my aunt's house within a month of her death? It's a bit of a segue, but I know one of my siblings will be expecting a similar scenario for mum's house so it will be good to be able to explain why it's not going to happen.

The holders of the will will file the will with the Probate List in your state's Supreme Court
There may also be claims for family provision
There will be a directions hearing about three months later to seek any submissions from parties
The Court will then have a hearing about three months later to pronounce the will valid assuming it was properly executed, and here are no challenges as to undue influence or testamentary capacity
After the hearing (if none of the above happens, there may not even be a hearing) the will would be probated by the Registry in 6-12 weeks

cheers

 

[Tim W]

2. The executor(s) don't have the power to give you notice until they are actually in office. - what are you talking about?

They people named in the will as the executors are only nominees.
They don't actually become the executors ("take office") until the Grant of Probate.
Until then, they have no power to direct you to so anything.
So, for example, they cannot give you a legally effective Notice To Quit from a house, until they have the power to do so.

 

[perjury]

Ah sure, thank you Tim
Is probate your area of law?

 

[Tim W]

Is probate your area of law?

I do a bit of it, yes.
So do most solicitors in general practice.
There are also accredited specialists in the field.

You find it helpful to do a keyword search of this site for the word "executor".