An executor can make changes to a will if the beneficiaries of the estate give express permission. As such, an executor can ignore the terms of a will if the beneficiary will sign a deed of family arrangement/deed of variation.
Sometimes, we can intervene on behalf of our beneficiary clients to ensure that the executor properly carries out the duties. If that doesn't work, we can make an application to the Supreme Court to either compel them to apply for a grant of Probate, account for the estate or remove them as executor.
Where the executor has not paid the legacy to the beneficiary within 12 months from the date of death, the beneficiary is entitled to claim interest until the legacy is received.
A substitute executor can be appointed. This means that the will sets out that the executor is appointed to administer the estate, but in the event that that person is unable or unwilling to act as executor, a different person can be appointed as executor.
The executor doesn't want to act
If the instituted executor named in the will does not want to act they can file a Renunciation of Probate form with the Supreme Court of NSW. Before renouncing the executor should check the wording of the will in order to make sure that another person is entitled to take their place.
If an executor is not communicating with beneficiaries, beneficiaries have a right to petition the court to try to compel the executor to provide information or to try to have the executor removed.
If an Executor Refuses to Act or Renounce
This means that both parties tell their stories to the court and ask for direction on how to move forward. Going in front of the court may not result in the removal of the executor, but it could very well move things along.
Who Can Challenge An Executor? You can apply to remove the executor if you're a beneficiary or a co-executor. A third party with an interest in the estate (such as a creditor) can also apply to have an executor removed.
If you discover that an executor has not been administering the estate properly and this has caused a loss to the estate, you may wish to consider proceedings against the executor personally.
A party contesting the will has to provide evidence to the court to show that the person did not have a sound mind at the time they signed the will. The court can call upon witnesses who saw the person signing the will, to determine mental capacity.
If an executor/administrator is refusing to pay you your inheritance, you may have grounds to have them removed or replaced. However, there may very well be legitimate reasons for the delay.
Normally the Master will discharge an executor who fails to submit this liquidation and distribution account without good reasons. The Master also has the authority to discharge an executor if he or she does not do his or her work properly.
While it is often beneficial to communicate with beneficiaries regarding the estate administration, executors are not required to comply with every single request for information. Beneficiaries are often surprised to discover that in reality they have a right to very little information regarding an estate.
The simple answer is no. The executor has the authority to hold the assets for a certain time for safe-keeping before distributing it. But he cannot withhold assets for any selfish benefit. In a few rare situations, the fee of an executor exceeds the value of the estate in which case he will have to take everything.
Yes, as an executor you can be sued.
You can make an application to remove an Executor either before a Grant of Probate has been issued or after. Generally, if such an application is made after the issue of a Grant of Probate, it would be made to the High Court under Section 50 of the Administration of Justice Act 1985.
If the beneficiaries of an estate (or one of them) feel that an executor is failing to fulfil one of their duties, legal steps can be taken to compel an executor to do so or be removed from their role.
As indicated above, only executors who act in the course of a profession or business which includes providing services in connection with the management or administration of trusts can charge (with the consent of their co-executors).
Does a next of kin have legal rights and responsibilities in the event of my death? No. If you have made a Will, your executor(s) will be responsible for arranging your affairs according to your wishes. Your executor may appoint another person to act on their behalf.
The executors of a will have a duty to act in the best interests of the estate and the people named in it. So, an executor can't change the will without the permission of the beneficiaries. It is technically possible to make changes to a will by creating a deed of variation.
Contesting a will is known as a contentious probate case. The person contesting a will is usually the person liable for paying the fees and you may have to pay the legal fees upfront. If your case is successful, the judge may find that the losing party is liable to reimburse the legal costs of contesting a will.
An Executor who finds that the beneficiaries are suspicious of him, despite no wrongdoing, is free to voluntarily file a formal accounting to prove that the books are in order and the proposed distributions are correct. Either way, a formal accounting is a unique, self-contained action in the chancery court.
If the deceased has appointed a professional executor, it may be the case that the family do not want them to take on the role. In this case, they can ask the individual to renounce and it is generally the case that they will do so, even though they are under no obligation.
There is no time limit in applying for Probate. Unlike some legal processes, such as applying for compensation, your application will not be disqualified because it is late. Nor will you be penalised or fined for late application. However, this does not mean that delay is necessarily safe.