Issues with Executors

Issues with Executors

The role of an executor (or administrator) is often open for dispute, whether between co-executors or between executors and beneficiaries.

Executor's duties

Executors are appointed to administer, preserve and protect the estate of a deceased person on behalf of the beneficiaries. The same applies for administrators of an estate. These are positions of trust and confidence. Under some circumstances there may be issues with executors and administrators with how they exercise their discretion in carrying out their duties. There are various steps that can be taken to dispute an executor's role, which can result in the removal of the executor.

Removing an Executor

The Administration and Probate Act 1958 (Vic) provides that a Court may order the termination of an executor or administrator where:

1. They remain out of Victoria for more than two years;
2. They desire to remove themselves as executor or administrator; or
3. They refuse, or are otherwise unfit or incapable to be the executor or administrator of the estate.

An executor or administrator may be deemed unfit in the following situations (among others):

• Maladministration (i.e. undue delay, making of unauthorised investments or failure to observe provisions or direction in a Will);
• Misappropriation (i.e. dishonestly using estate assets or funds for their own private use); or
• Conflict of interest (i.e. making a profit in their administration).

Unworkable relationships between co-executors is another common example for the removal of executors.

It is important to note that a Court will not lightly set aside the Willmaker's wishes that a particular person administer their estate. Removal is only likely to occur if the Court finds that significant harm would be done to the interests of the beneficiaries, should the executor or administrator not be removed.

In considering whether to remove an executor or administrator, the Court has a wide discretion to consider any manner of factors effecting the beneficiaries and the estate at large.

How can I prevent issues with Executors of my Estate?

It is impossible to foreshadow whether there will be any issues with your executors and the administration of your estate. However, there are some simple ways in which you can attempt to reduce the likelihood of a dispute after your death:

• Appoint multiple executors by appointing multiple executors, they are able to keep a check and balance on their co-executor's actions, thus reducing the potential risk of misappropriation;
• Appoint people you trust sometimes the most obvious candidate to act as your executor may not be the most appropriate. It is essential to appoint person(s) you trust and believe can competently handle your estate; and
• Appoint a professional executor by appointing a professional executor (i.e. a law firm or professional trustee), this can have the effect of removing any personal bias or pre-existing animosity between executors and/or beneficiaries.

How can Sharrock Pitman Legal assist if I have issues with an Executor?

Here at Sharrock Pitman Legal we offer a broad range of legal services to suit your various needs. If you would like to speak with one of our team members about an issue you are experiencing with an executor or administrator, as an executor or administrator, or if you have received a complaint from a beneficiary, please feel free to call our Accredited Specialist Wills and Estates Law team on 1300 205 506 or alternatively fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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