What are the rights of an executor in NSW

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Erwin Henrich

Member
27 July 2017
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0
1
Hi there,

I hope someone may help me with this matter.
My late mother passed away in May 9th 2015. Probate was completed in November 19th 2015. All assets were to be left equally between the two beneficiaries, my sister and myself. . However, under probate I was the nominated the executor. This was agreed to by my sister. There were shares, cash and my late mother's home. Monies and share were divided equally. The home was sold 29th April 2017. This fell within the 2 years that the Australian Tax Office will waive Capital Gains Tax etc. No income was generated from renting the home.
The home was auctioned and sold. However, some 12 to 18 months ago I had booked a holiday to the Philippines so we could see my wife's family and friends. I left in March 2017 for 4 weeks.
I had read various articles that the executor is able to nominate a person to take over my responsibilities, if the executor was unable to carry out his or her duties, for a short period of time. Additionally, the executor is able to pay that person for their time.

Question
Is there any legal document that states an executor can nominate a person to take over the responsibilities and pay them for their services?

Reason for asking the question
The other beneficiary, my sister, is not in agreement in paying the invoice that was presented by this person who looked after the estate while I was away. The reason given by my sister, was that this person did not have a ABN and not registered as a business. I would like to know that I have some legal grounds / precedent / NSW legislation that allows an executor to carry out is duties.

Thank you for your kind assistance.
Erwin
 

Tim W

Lawyer
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28 April 2014
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Sydney
Is the invoice a tax invoice from a sole trader?
 

Erwin Henrich

Member
27 July 2017
4
0
1
Hi Tim,

Thank you for responding.
It was not a tax invoice. The person is a sole trader.
I know this person very well and I was able to trust them to look after the estate in my absence.

Regards
Erwin
 

Tim W

Lawyer
LawConnect (LawTap) Verified
28 April 2014
5,036
830
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Sydney
I don't mean to nag, but the differences matter.
A sole trader, or an ordinary private person?

Where I am heading with is that I want to rule out
that the person was a not perhaps a casual employee of the Executor.

I'm not tending to the view that your sister is not correct,
but without more, I'm not prepared to call it.
 

Erwin Henrich

Member
27 July 2017
4
0
1
I don't mean to nag, but the differences matter.
A sole trader, or an ordinary private person?

Where I am heading with is that I want to rule out
that the person was a not perhaps a casual employee of the Executor.

I'm not tending to the view that your sister is not correct,
but without more, I'm not prepared to call it.

Hi Tim,

Again thank you fro your kind response.
No, please ask as many questions you like, I'm an open book, with nothing to hide.

No, the person I asked to assist me, while I was away on holidays is not an employee.
I do not run a business (for profit) of any sort in Sydney (Australia).
I am a retiree trying to finalise my late mother's estate.
I have not paid this person any monies that would be deemed a wage or salary.

I have engaged a solicitor, who is helping me finalise the estate.
This included the sale of my late mother's property.
This solicitor is also assisting me in finalising the estate and keeping my the other beneficiary informed.

However, I do know this person through an Association, Incorporated in NSW, that I had set up.
The Association was incorporated in NSW September 2016.
I was voted as president and this person was voted vice president by the members of the Association.
If you want more details as to what the Association does, just let me know and I'll give you more information.
This is the only connection I have with this person.
We are not paid a wage or salary by the members for the work we do.
The work we do is voluntary.

I hope I have clarified this point. If not, just ask me more questions.

Kind Regards
Erwin
 

Tim W

Lawyer
LawConnect (LawTap) Verified
28 April 2014
5,036
830
2,894
Sydney
I have not paid this person any monies that would be deemed a wage or salary.
That would appear to be the point upon which you and your sister disagree.
A simple reimbursement of expenses is one thing,
but anything that looks like paying for time and/or effort and/or skill/expertise
well, that can be different.
You should discuss this with your existing solicitor.
I have engaged a solicitor, who is helping me finalise the estate.
Frankly, if you already have a solicitor, then I'll withdraw from this discussion.
None of us will tolerate being second-guessed by somebody remote from a matter they are working on.
 

Erwin Henrich

Member
27 July 2017
4
0
1
Hi Tim,

My apologies that you feel this way.
As you know, there is nothing wrong with getting a second opinion.
People do it all the time, when seeking professional medical advice, with surprising results.

Frankly, I have only asked the solicitor to engage the beneficiary on my behalf.
That's all he has done at this time.
I've not asked for his advice on this matter.
Additionally, the solicitor is not specialised in Will and Probate.

Anyway thank you for your time.
Have a lovely weekend!

Regards
Erwin