A Negligent Executor

Are you the beneficiary of a will and getting frustrated with the lack of information that you are being provided by the executor? Or is the executor named in the will refusing to make the application for probate? If so, contact us immediately to do something about it.

The executor of the will is bound by specific fiduciary duties which are founded in the relevant succession legislation, being the Succession Act and the Probate and Administration Act.

The general duties of the executor (and administrator in cases where a testator has died intestate) are:

• To arrange for the proper disposal of the body
• To obtain a grant
• To ascertain the assets of the estate, reduce the estate to possession and recover any amounts to the estate
• To ascertain liabilities of the estate and pay funeral, testamentary and administration expenses and debts of the estate
• To distribute the estate in accordance with the testamentary dispositions or to those entitled to take on intestacy
• Where assets are held on trust, to invest those assets and administer the trust
• To keep proper accounts
• To wind up the estate

The most common issue a beneficiary will have with an executor is that they are taking too long. The principle of an executor’s year refers to an obligation upon the executor to realise estate assets, pay debts and expenses and distribute the estate within a year of the deceased’s date of death. Whilst this principle applies, in practice, it depends upon what is reasonable in the circumstances. Although it has been said that if the year has passed, the onus shifts on the executor to justify the delay.

If you are frustrated with the lack of progress with your estate matter, there might be a number of remedies available to you, including:

• Having the executor removed from their role (and usually taking their place)
• Forcing the executor to take the necessary steps to give you your gift under the will
• Claiming damages from the executor for their breach of their fiduciary duty

Our estate litigation lawyers have experience in a range of matters involving executor negligence so contact our office immediately to arrange a free no obligation consultation to discuss your available options if you feel the executor is not fulfilling their obligations.