NSW Wills Lodged with Public Trustee

[Jill Sheldon]

My mother has her will lodged with the Public Trustee, and I would like to know what the procedure will be when she dies for the sale of her assets. I assume that the Public Trustee takes care of the sale of the house, but what happens with her personal possessions? Will they auction these off without our being able to go in the house and choose what we want?

I'm concerned that this would happen as I know she would hate strangers going through her possessions.

The will was made when my father was still alive and I don't think she is aware of what will happen.
Of course I could be totally wrong in making these assumptions as I don't know anything about it either!
Thank you

 

[Sophea]

Hi Jill,

Is the Will simply stored with the Public Trustee? Or was the will drafted with them?

The first thin you need to do is get a copy of it to see what it says. Your mother should have another copy of the will, but if not you can probably get a copy from the Public Trustee. What happens and who will be in charge of the estate when she dies depends who has been appointed as the executor of the estate and what the will says about personal effects.

If the Public Trustee has been appointed as the executor all of your mother's estate will vest in it, and it will be legally held on trust for the beneficiaries until it is distributed to them. If there are specific provisions in the will about who her personal effects are to be given to or what is to be done with them, the public trustee must abide by her wishes. I'm not entirely sure how the Public Trustee manage personal effects in the absence of any specific direction in the will, you may wish to call the Public Trustee (or have your mother call them) to discuss what will happen. This may give your mother an opportunity to change anything in her will that she is not happy with.

 

[Tim W]

It is also important to know that until probate is granted and the execution is complete,
people cannot just go in and help themselves to the deceased's "stuff".*

Basically, what @Sophea said. Until probate is granted, everything that
the deceased owned - from the pots and pans and mismatched coffee cups,
all the way up to the car, the boat, and the house, is vested in the NSW Trustee**
The law that says so is here.

The legal principle in play here is that property always has to vest SOMEwhere
(that is, it has to "belong in law" to SOMEbody).
In the interim between a person's death and the appointment of an Executor,
that "somewhere" is with the NSW Trustee. It moves to the Executor once appointed.

In practical terms (based on questions people have asked me over time...)

1. Lawyers often get asked questions in the line of
   "But it's a simple estate, he didn't have much, can't we just split up his things and move on?"
   Short answer is "no".
   
   
2. For one thing, somebody will have to do all the stuff with registering the death, settling any debts,
   sorting out Centrelink and the ATO etc.
   
   In NSW, for a deceased with a valid will, this person is called an Executor.
   For an intestate deceased, this person is called the "Legal Personal Representative".
   
   
3. They are appointed by the Supreme Court. Where a will is found to be valid,
   you will hear the term "a grant of probate" (for clarity (and brevity!!),
   I will leave out discussion of intestacy).
   Probate is the Executor's authority to act on the estate (eg to close a bank account,
   or sell a house, or even recover a rental bond, and, importantly, to distribute any assets).
   
   
4. For another, until the work in item (3) above is complete,
   nobody else can just come in and take any of the deceased's "things".
   The Executor is not allowed to distribute until all the other work is complete.
   It follows then that a person who, for example, takes an item from the deceased's home
   can in fact (and at law), be stealing it.***
   This can be the case no matter what the value, no matter who was supposedly promised what,
   and no matter what people say the deceased said.

-------------------------------
* See here
** You may know them by their old name - the Public Trustee.
The full name of the office is now the NSW Trustee and Guardian
*** Stealing it from its legal owner, the NSW Trustee, or, once appointed, the executor