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NOT ALL BLACK AND WHITE: Extorting fees from the dead


CASWELL FRANKLYN

NOT ALL BLACK AND WHITE: Extorting fees from the dead

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MY FONDEST WISH is that these columns do not only provide an opportunity for me to vent but that they impart useful information to the public. To this end, I would like to share my experiences that could be beneficial to others.

So far, two of my friends have trusted me to take care of their affairs after they have departed this world. In both cases, they asked if I would consider being the executor of their estates. I felt humbled and honoured that they would consider me for such a sacred role and I accepted.

Unfortunately, in both cases, I have encountered banks doing their best to milk the estates by implementing unnecessary procedures and imposing fees for their work.

Just last month, I turned up at a bank, accompanied by my friend’s elderly widow, with Letters Testamentary to close his bank account and hand the proceeds over to her. Letters Testamentary is a document issued by the High Court that authorises the executor of a will to take control of the estate of a deceased person.

I instructed the bank to close the account and pay the proceeds over to the widow. Having passed that way before, I was not surprised that the bank refused. Instead, they said the bank’s procedure required me to open an estate account from which I would be able to make payments, since they did not disburse cash in these circumstances.

I insisted that the Letters Testamentary authorised me to operate that account and demanded legal tender. The bank manager refused to budge, which forced me to complain to the bank’s legal and compliance department. Thankfully, the legal officer resolved the matter almost immediately and I was able to obtain cash, without paying the bank any fees.

The fees were small but as far as I was concerned, the bank had no right to them. I was offended that the bank would try to extort money from the accounts of deceased persons. It is a crying shame that banks would institute unnecessary procedures to rob the dead but they are not alone.

In many instances, deceased persons leave very small estates but legal fees to obtain Letters of Administration would wipe out the greater portion of the estate. But rather than advise their clients to utilise the free procedure available to them, lawyers advise their clients to go through the courts where they can relieve the estate of the few remaining dollars.

When a deceased person leaves an estate valued less than $15 000, there is no need for a lawyer. Subsection 5. (1) of the Public Trustee Act states:

Any person who in the opinion of the Public Trustee would be entitled to apply to the High Court for an order for the administration by the High Court of an estate, the gross capital value whereof is proved to the satisfaction of the Public Trustee to be less than fifteen thousand dollars, may apply to the Public Trustee to administer the estate, and where any such application is made and it appears to the Public Trustee that the persons beneficially entitled are persons of small means, the Public Trustee shall administer the estate, unless he sees good reason for refusing to do so.

Subsection 5. (6) states:

Where proceedings have been instituted for the administration of an estate and by reason of the small value of the estate it appears to the High Court that the estate can be more economically administered by the Public Trustee than by the High Court or that for any other reason it is expedient that the estate should be administered by the Public Trustee instead of the High Court, the High Court may order that the estate shall be administered by the Public Trustee, and thereupon (subject to any directions by the High Court) this section shall apply as if the administration of the estate had been undertaken by the Public Trustee in pursuance of this section.

The Public Trustee is the person who holds the post of Solicitor General. 

Caswell Franklyn is the General Secretary of Unity Workers Union and a social commentator. Email: [email protected]

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