As an executor of an estate, there are certain duties that you would be responsible for undertaking, such as:
- Applying for a Grant of Probate from the Supreme Court of NSW;
- Handle funeral arrangements;
- Obtain a death certificate;
- Account for the assets of the deceased;
- Safeguarding the assets until distribution;
- Defending the estate against challenges;
- Discharging debts and liabilities are among the executor’s duties;
- Consulting an accountant to address tax liabilities; and
- Distributing the remaining assets as per the deceased’s Will.
An appointed executor has the choice to renounce their role before applying for probate. However, once an executor has already started acting in their role, it becomes more difficult to renounce.
Executors may incur costs while administering the estate, such as travel expenses and funeral costs. They can claim these expenses from the Court.
Executors must act in accordance with the deceased’s wishes as expressed in the Will, provided the instructions are legally valid and do not contradict NSW estate laws. Executors must act honestly, diligently, and with care. Breaches of duty, such as causing losses to beneficiaries or excessive delays in estate administration, can lead to liability and potential removal as an executor.
If an executor is deemed unsuitable, the Court has the authority to remove them from their role. The Court will review the original grant and consider submissions related to the executor’s conduct. If necessary, the Court can order the removal of the executor. In such cases, a suitable replacement may be appointed to act as the administrator of the estate.
The executor must obtain permission from the relevant beneficiary to dispose of any items in the estate that hold no monetary or sentimental value. A fundamental rule for executors is to refrain from giving away any estate property unless it is sold at a fair market value. If an executor distributes property intended for a beneficiary or with sentimental or monetary value, it constitutes misconduct, and the executor may be subject to removal from their position.
Beneficiaries have the power to hold the executor accountable for the administration of the deceased estate. They are entitled to know if they are listed as beneficiaries in the Will, the nature of their bequest, the overall extent of the estate, and an estimated timeline for receiving their entitlement. Beneficiaries also have the right to receive updates regarding any delays in the distribution of the estate, including information about legal challenges to the Will or claims against the estate.
An executor is bound by various legal obligations, including their fiduciary duty to the beneficiaries of the estate. This duty places the executor in a position of utmost trust, responsible for safeguarding the deceased’s estate until it is distributed and protecting the rights of the beneficiaries.
Lack of trust in an executor may stem from the perception that the executor is withholding the estate and not promptly distributing the rightful entitlements. This concern often arises because the executor is required to wait for a certain period before distributing bequests. In New South Wales, it is strongly advised that the executor waits at least six (6) months before distributing the estate to allow creditors or claimants to come forward. Beneficiaries should receive their inheritance after a year unless other arrangements are specified in the Will.
If an executor refuses to provide a copy of the Will in New South Wales, there are legal actions that can be taken to address the situation. The following outlines what can be done if an executor refuses to provide a copy of the Will:
- Entitlement to Inspect the Will: a beneficiary named in the Will, beneficiary named in an earlier Will, the deceased’s spouse, partner or child, parents or guardians of the deceased, potential intestate heirs, individuals with potential legal or equity claims against the estate, and others specified in the regulations are entitled to inspect the Will.
- Passing Over the Executor: If the executor is behaving inappropriately or is thought unsuited for the post, a beneficiary may petition the Supreme Court to have the executor removed. This signifies that the executor is not selected and that someone else is. The Court Will seek proof explaining why the named executor is unsuited for the function to successfully pass over an executor. The Court is normally wary of ignoring the deceased’s intentions about the executor, but if there are legitimate objections supported by evidence, they may appoint someone else as executor.
- Applying to Remove the Executor: If the executor has already been granted probate but there are issues about their behavior, a beneficiary can petition the Supreme Court to remove them as executor. This application must include evidence explaining why the executor is incompetent or unsuited for the task. If the executor’s failure to give beneficiaries with a copy of the Will is a contributing reason to the concerns, it might be mentioned in the application.
In New South Wales, an executor of a Will is generally expected to follow the instructions provided by the testator in the Will. However, there are certain circumstances where an executor may need to make changes to a Will. Below is an overview of when an executor can change a Will in NSW:
- An executor can make changes to a Will if all the beneficiaries of the estate provide their express permission.
- If a beneficiary named in the Will dies before the testator, the executor may need to change the distribution of the estate.
- An executor may need to deviate from the terms of the Will to settle the debts and liabilities of the deceased estate.
- In cases where a Will contains vague or unclear clauses, an executor may need to interpret the testator’s intentions.
- If a valid claim or challenge is made against the estate, such as a claim for inadequate provision, the executor can negotiate and make changes to the distribution of the estate to reach a settlement.
If you are an executor that requires assistance in managing the estate of a deceased, or are a beneficiary who believes the executor is not trustworthy and breaching their duty, please contact us to arrange for an initial conference to discuss how we can assist you.