What can a beneficiary of a will do when the executor is not following their duties? When will executors be engaging in misconduct? Can an executor be removed from a will of an estate? Who will pay the legal costs?
What can beneficiaries do when executors are misbehaving?
An executor is a person appointed by a will to carry out the deceased’s wishes. This includes funeral arrangements, obtaining probate, discharging debts and keeping proper accounts. The most notable duty is that executors must collect, protect, manage and distribute estate assets to beneficiaries in accordance with the will.
When will executors be engaging in misconduct?
Here are a few examples:
- executors acting in their own interest to the disadvantage of the beneficiaries;
- misappropriating estate assets;
- unnecessarily delaying administration and distribution of the estate (executors have a year to perform these obligations);
- failing to keep a proper account for the estate; and
- failing to comply with the directions in the will.
Can an executor be removed?
If probate or letters of administration have been granted, beneficiaries can apply for an order to remove an executor and appoint an independent person (such as the Public Trustee or a solicitor) to administer the estate.
However, it is important to note that courts are generally reluctant to interfere with the appointment of an executor.
The process of removal requires the court to declare the executor ‘unfit.’ This means the person is not willing, adapted or suited to the office of executor. Executors can be declared ‘unfit’ if it can be established they have engaged in misconduct or have neglected their duties for an unreasonably prolonged period of time.
The Court will consider whether removing the executor is in the best interests of the beneficiaries and whether it will help the due and proper administration of the estate.
Who will pay the legal costs?
In most circumstances the estate will pay for the legal costs incurred. However, a person who brings a meritless claim to remove an executor and subsequently fails could be left paying their own costs as well as the estate’s costs.