Don’t trust the executor of an estate?

Don’t trust the executor of an estate?

Being an executor is often a somewhat thankless task. An executor plays an important part in deceased estate administration. They hold extensive power, and most executors discharge this responsibility without problem. However, on occasion an executor will abuse their power, either through misconduct or, on occasion, incompetence. So, what can you do if you don’t trust an executor?

An executor owes what is known as a fiduciary duty to put the interests of the estate before their own. This includes guarding the assets of the estate and defending the will (including against any challenge to the terms of it). As the executor is obliged to act in the beneficiaries’ interest, the beneficiaries should feel able to trust the executor. To this end an executor must be honest with the beneficiaries and this includes providing them with critical estate information promptly, as well as acting competently and without unnecessary delay to administer the estate. However, an executor represents the deceased person as the ‘legal personal representative’ and is not solely answerable to the beneficiaries.

Some common complaints which arise is relation to estate administration are:

  • a refusal to provide copies of basic estate documents (eg a copy of the Will or the Statement of Assets and Liabilities filed in support of an application for a Grant of Probate);
  • delays in administering the estate; and
  • a lack of transparency (or none at all) about estate assets and/or their stated value/s.

Any concerns should in the first instance be put to the executor (or any lawyer acting on his or her behalf) and a reasonable timeframe for a response must be provided. It is pointless demanding a response in, for example, 48 hours. If a beneficiary has made a reasonable request with a reasonable timeframe for a response to be provided, and it is then either ignored or largely not complied with, further steps may need to be taken.

To this end, a beneficiary is entitled to obtain a copy of the will and, in some instances, a copy of the Statement of Assets and Liabilities filed by the executor in support of his or her application for a Grant of Probate. Obtaining those documents is often a useful first step and the beneficiary can then use this knowledge to better inform his or her position and work out what (if any) documents or records might need to be requested from the executor, such as bank statements, real estate valuations and so forth.

Ultimately, if the executor refuses to cooperate with a beneficiary, then a beneficiary may apply to the court for a ‘passing of accounts’ in relation to the estate. This obliges the executor to provide the estate’s financial records (including invoices/receipts/bank statements etc) to the court for scrutiny. As a general proposition, if the executor is made aware of the passing of accounts process, then he or she is usually less likely to engage in misconduct.

Finally, in cases where an executor has breached their fiduciary duty to the estate, the Supreme Court has the power to revoke a Grant of Probate. Making such an application is not a step taken lightly and there needs to be actual evidence of an executor’s fraud, misconductor incompetence.

Finally, if you have read this far and think you may need some assistance or advice in your matter, now is the time to get in touch. Austral Legal offers an initial 30 minute SmartMove appointment at our discounted rate of $80 including GST. Bookings can be made online via the website, or by phoning the office on 08 9745 9550. Austral Legal. Practical advice in Bunbury and the South West of WA.