When an Executor does the wrong thing: a Beneficiary’s rights

It is important for a Beneficiary to trust an Executor, as the role of an Executor is one of absolute trust in administering an Estate. They are responsible for the caretaking and distribution of an Estate throughout the duration of the administration process. The Executor is required to work closely with the Beneficiary and protect the interests of all parties.

The Beneficiary has rights under the Succession Act 2006 and Probate and Administration Act 1898. They are entitled to know whether they are listed as a Beneficiary, the nature of their bequest, the extent and content of the deceased estate and to be kept up to date and informed during the distribution process, in a timely manner. 

A Beneficiary may feel an Executor is untrustworthy if information and updates are withheld. They may also feel unable to trust an Executor if they feel their entitlement is not being passed on in a timely manner. Ordinarily, you can expect that the Estate to be distributed within 12 months.

 An Executor should not be trusted if any of the following circumstances occur:

 1.      Where communication from the Executor is poor or not performed at all;

2.      Where an Executor causes wilful delays in the administration of the Estate;

3.      Where the Executor is not accountable or easily contactable;

4.      Where an Executor buys or sells assets of the Estate and/or sells assets lower than market value;

5.      Where the Executor profits from their role;

6.      Where the Executor delegates their duties;

7.      Where the Executor does not treat the Beneficiary in a fair and respectful manner;

8.      Where the Executor does not follow the wishes of the Testator; and

9.      Where the Executor does not produce evidence of the transactions they have performed on behalf of the Estate.

 Should any of the above events occur, a Beneficiary should report mismanagement of the Estate as soon as they become aware. If an Executor abuses their power, they are subject to serious legal ramifications.

 The Supreme Court of NSW can remove an Executor by revoking the Grant of Probate and issuing a new Grant. The Court must have sufficient evidence to justify the removal of an Executor not just hearsay from the Beneficiary. Proof of misconduct must be produced, for example malicious intent, carelessness, disregard or neglect.

 To assist with all of your Estate needs, please don’t hesitate to get in contact with the team here at Wainwright Legal on (02) 9170 0899.