HOLD EXECUTOR of a will TO ACCOUNT

+ I DON’T KNOW THE ASSETS AND LIABILITIES OF THE ESTATE. WHAT CAN I DO?

An Executor has a duty to keep proper records of the assets, liabilities, income and expenses for the estate.

When requested, they should be able to provide you with this information.

If they have not correctly managed the estate funds, they will need to repay the shortfall from their own money.

As a beneficiary, you are entitled to an accounting from the Executor and if an Executor refuses to provide you with this information, please tell us so we can hold them to account for you.

+ WHAT DOES THE EXECUTOR OF A WILL DO?

The Executor of the Will must act in the best interests of the beneficiaries named in the Will, and failure to do so can lead to their removal from that role and the appointment of an independent solicitor as an Administrator.

We can help you challenge a Will Executor in QLD by either seeking Court Orders that they comply with their obligations under the Will or seek an Order for their removal as Executor.

An Executor’s job is to collect the assets of the estate, pay the debts of the estate, and then distribute the estate in accordance with the terms of the Deceased’s Will.

Some Executors will engage the services of Estate and Will lawyers to do this and those costs will be paid from the estate. The Executor also has a duty to defend any claims which might be brought against the estate, including if someone has challenged the Will or the decisions of the Executor.

If you are a beneficiary of a Will and are dissatisfied with the Executor efforts to administer the Will, you can do something about it and challenge a Will Executor and we help by filing Court proceedings against them in the Supreme Court of Queensland.

+ HOW CAN I REVIEW THE ACTIONS OF AN EXECUTOR OR ADMINISTRATOR?

In Queensland, all beneficiaries have a right to be heard in relation to any Will challenge brought against the estate because their inheritance could potentially be reduced as a result of that Will challenge.

If you’re unhappy with the actions of the Executor for any reason, don’t believe the Lawyers for the Estate are being aggressive enough in their defence of the Will challenge, we can help.

Whether the Executor is too slow, ignoring your wishes or simply refusing to follow the terms of the Will, our Will Dispute Lawyers will discuss with you how to challenge a Will Executor in Brisbane to challenge their actions, remove them as Executor or alternatively give you a voice in defence of any challenge to a Will brought by anyone else.

+ CAN I SUE AN EXECUTOR OR ADMINISTRATOR FOR THEIR CONDUCT?

If you are a beneficiary of a Will or an estate, there are many reasons you may disagree with the actions of the Executor. You may not believe the Executor has applied for a Grant of Probate or administered the estate in a timely manner.

The Executor may not be investigating the actions of an Attorney of the Deceased prior to death for any missing money, or they may be ignoring your wishes or refusing to consult you altogether.

The Executor may have instructed a lawyer who does not specialise in Estate and Will matters and so you might be concerned about their role in your family’s affairs.

If you don’t believe the executor of a will is acting in your best interests as a beneficiary of a will, you can commence Court proceedings against an Executor or Administrator in Brisbane with the help of our Will dispute lawyers. Contact us for help.

+ THE EXECUTOR WON’T DO WHAT I SAY. WHAT RIGHTS DO I HAVE?

The Executor’s job is to act in the best interests of the beneficiaries of the estate. The best way to act in the best interests of the beneficiaries is to ask them and then so far as is reasonable, follow their wishes.

Sometimes the Executor will receive contradicting instructions from different beneficiaries and if that is the case, the Executor might need to exercise their own discretion.

If you are not happy with the Executor’ decision, The Estate Lawyers want to talk with you about holding the Executor to account and requiring them to act in the way which you would like.

+ THE EXECUTOR WON’T GIVE ME A COPY OF THE WILL. CAN I FORCE THEM?

If someone is an Executor and they refuse to provide you with a copy of the Will after you have requested one, we want to hear from you because the Executor is in breach of their obligations under s33Z of the Succession Act.

This section of the Succession Act goes further than simply applying to the Executor, it will also apply to the law firm and the staff of that law firm who might hold the original Will for the Executor.

If required, The Estate Lawyers would be pleased to write letters of demand to both the Executor and the lawyers who might hold the original Will to assert your rights.

+ THE EXECUTOR ISN’T DEFENDING A CLAIM AGAINST THE ESTATE THE WAY I WANT. WHAT CAN I DO?

If your interests as a beneficiary will be adversely affected by a challenge to the Will or the estate, you are entitled to instruct lawyers independently of the Executor who will fight for your specific rights.

This commonly occurs when the Public Trustee, a trustee company, an accountant or a solicitor is appointed as Executor. Often in these circumstances the Executor doesn’t want to become involved in a fight among family members and are pleased for all parties to engage their own Estate and Will lawyers.

The Will Dispute Lawyers have represented clients in this situation many times and it is quite a common occurrence.

+ CAN I REMOVE THE EXECUTOR?

If the Executor’s conduct is so bad, you can file proceedings in the Supreme Court of Queensland seeking their removal and replacement.

There is no fixed rule for the removal of an Executor except you must prove that the Executor’s ongoing involvement in not in the best interests of the estate.

You do not need to prove the Executor has done anything wrong, you merely need to prove it is in the interests of the estate that the Executor is replaced.

Before you file proceedings in the Queensland Supreme Court, our solicitors would like to discuss with you sending some correspondence to the Executor to set them up for this removal Application.

+ THE EXECUTOR WAS A POWER OF ATTORNEY. CAN I ASK WHERE THE MONEY WENT?

A Power of Attorney must keep a written record of each exercise of their power for financial matters.

It is the job of the Executor to investigate these transactions to ensure that there were no improper dealings with the estate money.
If an Executor was previously the financial Attorney for the Deceased, then they cannot investigate themselves and as a beneficiary you should call for the Executor to provide this disclosure to you.

If the Executor refuses, we at The Estate Lawyers would then encourage you to bring an Application for their removal as Executor.

+ THE EXECUTOR IS TAKING MONEY FROM THE ESTATE. CAN I COMPLAIN?

An Executor must act in the interests of all beneficiaries of the estate, not merely in their own interests.

Therefore if they are acting in a way which gives them a benefit to the detriment of the beneficiaries of the Will, the beneficiaries should give the Executor a warning about their conduct and then if it does not cease, take steps to apply to the Court for Orders for either the removal of the Executor of for directions about how to advance the administration of the estate.

+ THE ESTATE ADMINISTRATION IS TAKING TOO LONG. IS THERE A TIME LIMIT TO RECIEVE MY INHERITANCE?

Generally Executors have one year before you can file Court proceedings against them to take issue with their effort to administer the estate and provide you with your inheritance. However, you should not wait that long before putting the Executor under pressure.

If you have not seen real progress in the administration of the estate within a few months of the Deceased’s death, we can commence acting for you to call upon the Executor to make an interim payment to you.

If after this you do need to take the Executor to Court, we can help you set them up for your Court Application for their removal.

+ COURT PROCEEDINGS HAVE BEEN COMMENCED AGAINST THE ESTATE. CAN I DO ANYTHING?

If Court proceedings have been filed in a Queensland Court against the estate, the Executor is duty bound to defend them so far as is reasonable.

If you are not happy with the defence provided by the Executor, you would have rights to be independently represented in that litigation so you can instruct The Estate Lawyers to fight for you. We would like to talk with you about this.

+ CAN I STOP A CHALLENGE TO A WILL IN QUEENSLAND?

If you are a beneficiary of a Queensland estate and you are concerned that your entitlements may be reduced due to a Will challenge, you don’t have to sit idly by while the person challenging the Will makes claims which are contrary to your interests or is based on evidence which you believe to be false.

You have the right to instruct your own estate lawyers to tell your version of events and to take active steps to actively oppose and challenge a Will Executor’s position.

+ WHAT GROUNDS ARE THERE FOR CONTESTING THE APPOINTMENT OF AN EXECUTOR IN QUEENSLAND?

In Queensland you can challenge the appointment of an Executor if you believe their appointment is somehow not in the best interests of the estate.

For example, the Executor might be in a position of conflict whereby they wish to challenge the Will personally for their own benefit, if they are preferring their interests of the interests of the estate or aren’t acting in a way which you believe accords with the terms of the Will or the requirements to administer an estate.

+ CAN A POINTLESS WILL DISPUTE BE DISMISSED?

If someone challenges a Will in Queensland and they don’t have sufficient evidence for their claim to succeed, as a beneficiary or Executor of the Will you can apply to the Court for the summary dismissal of the challenge to the Will. The Courts don’t like people challenging a Will unless they have evidence to support their allegations. At The Will Dispute Lawyers, we don’t believe that just because there is a challenge to a Will that you should simply roll over and pay the person disputing the Will what they want. We are here to fight for your rights and your principles and so if that means proactively seeking to dismiss a challenge to a Will, we can do that. Talk to us today.