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Here’s one for the Lawyers.
One of our Proprietors passed, and in April 2013 the Owners Corporation received a copy of the Grant of Probate and a S118 Notification indicating that the Executrix (her sister) now had the “interest in the property” and that the nature of that interest was consequent to “a change of ownership”.
However a Title Search on the L&PI Website reveals that Ownership of the Lot is still with our deceased Proprietor!
My problem is twofold:
1) I’ve updated the Strata Roll to reflect the information provided in the S118 Notification, where that’s inconsistent with what’s shown on the Certificate of Title for the Lot, and;
2) I’ve just receive that “owner’s” proxy in my favour for next week’s AGM, but I’m not sure that she’s the legal owner who would be able to grant that proxy.
My questions are:
1) Is there a time limit for the lodgement of an Application for Transfer (of title) after the death of a Proprietor?
2) At the current time, the Registered Proprietor as shown on the Certificate of Title for the Lot is deceased, so is the Executrix as shown on the S118 Notification entitled to vote at all, and if so, is that person themselves the proxy for the estate and therefore unable to assign that right to a third-party (i.e. me)?
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As it is, the proxy is invalid. It should be in the capacity as the executor of the deceased estate, with the relevant documentation attached, such as the will and/or grant of probate etc.
Otherwise, the proxy could be in favour of that person as the person who has the beneficial interest in the property, but again it would have to have the relevant documentation attached, and it would have to be signed by the executor who is the same person so that would be pretty circular.
In terms of transfer of the property, I don’t think there is necessarily a time limit. However, the executor of the estate wouldn’t be doing their duty if they didn’t take steps to effect the transfer, so query why that hasn’t been done.
The executor hasn’t done it right, as the transfer into her name hasn’t been done, she should have just advised that the person was deceased so it could be noted that the property was currently held by the estate. The strata roll should reflect the certificate of title, subject to any interest that has been notified.
That’s right – a proxy can’t assign a proxy. The executrix – in that capacity – is not the legal owner of the property, the estate is.
She can decide not to transfer the property to herself and continue to claim a pension, and avoid land tax (although this may catch up with her), but there is no reason why you should assist her in that. I would say the opposite applies
Hi,
You maybe interested in this quote from a NSW govt website as far as ownership is concerned. BTW, I’m not a lawyer.
From the second paragraph…
“A beneficiary does not own the property until the executor distributes the estate. Before distribution, the executor is regarded as the ‘owner’ of the assets in so far as the executor holds the estate in trust for the beneficiaries.”
https://www.legalanswers.sl.nsw.gov.au/guides/wills_estates/beneficiaries.html
The strata representative should deal with the executor rather than beneficiaries.
Yes that’s right – the problem here is the executor and the beneficiary are the same person.
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