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04 March 2022

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Wills, Powers, Estates & Family Provision Claims
Victoria

Asked

Dispute between co-administrators of an intestate estate

Two siblings are co-executors for the estate of their deceased father, who died intestate. They have a lawyer acting on behalf of the estate.

One sibling would like to sell the property, but the other is refusing. There is a mortgage of $100,000 on the property which the siblings cannot continue to service.

What action, if any, can the first sibling take to force the sale of the property? Would they need to obtain individual legal representation?

Answered

Thank you for the question.

There can be no executors of an intestate estate. Presumably the siblings are co‑administrators of their father’s intestate estate, having been jointly granted letters of administration. As such they have a fiduciary duty to act in the best interest of the estate and its beneficiaries.

By Lawyers 101 Succession Answers (VIC) provides the following under the heading Administrator – Duties:

An administrator, once appointed, has the...duty to distribute the estate to the persons entitled, pursuant to...the rules of intestacy...

Section 70ZG of the Administration and Probate Act 1958 provides that the residuary estate  is to be distributed to the surviving children in equal shares. If any child of the deceased predeceased him leaving grandchildren they would be entitled to their parent’s share. 

If the administrators are not able to service the mortgage on the deceased’s property and cannot agree to realise the estate’s property, whether by sale or transfer, to then distribute and finalise the estate, then one of the administrators might need to consider an application under s 34 of the Administration and Probate Act to remove the other as co-administrator.

Regards

Mentor