A Will-maker (testator) must choose an executor they trust to take care of their estate after their passing. The executor should ideally be someone who the deceased’s family and friends would also find trustworthy. After the testator’s death, the executor will need to work closely with beneficiaries such as the deceased’s family. A problem can arise if the beneficiaries don’t trust the executor.

Rights of beneficiaries who don’t trust the executor

Firstly, it is important for a beneficiary to understand their rights under the Succession Act 2006 and the Probate and Administration Act 1898. Beneficiaries can hold an executor to account for the administration of a deceased estate. A beneficiary is entitled to know the following:

• whether they are listed in the Will as a beneficiary;
• the extent of the deceased estate as a whole;
• the nature of their bequest; and
• when they are likely to receive their entitlement.

The beneficiary also has a right to be advised if there are any delays in the distribution of the estate. This includes developments that may affect their bequest, such as claims against the estate or legal contests of the Will.

An executor’s fiduciary duty

An executor is bound by legal obligations including their fiduciary duty to the estate’s beneficiaries. Their position is one of extreme trust, including the responsibilities of protecting beneficiaries’ rights and caretaking a deceased estate pending it’s distribution.

A beneficiary may not trust an executor because they feel that the executor is holding on to the estate and not passing on their rightful entitlement. This is a common complaint because an executor is obligated to wait a certain amount of time before they give out the bequests. The executor is strongly advised to wait at least six months before distributing the estate to allow claimants against the estate and creditors time to come forward. A beneficiary need not begin to worry about the timeliness of the estate distribution until a year after the testator’s death. A beneficiary should receive their inheritance after a year unless there are other arrangements in the Will.

A beneficiary may reasonably distrust an executor who does any of the following:

• Causes unwarranted delays to the administration or distribution of the estate;
• Refuses to communicate with the beneficiaries in a timely manner;
• Places their own interests ahead of the estate;
• Fails to properly account for the estate assets;
• Makes a profit from their position other than through a reasonable executor’s commission;
• Buys estate assets themselves or sells them to friends under market value;
• Delegates their executor responsibilities without authorisation;
• Fails to prudently manage and invest estate monies;
• Fails to act impartially and does not treat beneficiaries fairly;
• Does not keep comprehensive financial records of the estate transactions; or
• Does not follow the testator’s instructions.

Removing an executor you don’t trust

An executor has access to significant assets and sums of money which they could theoretically abscond with, misuse, or squander. As an executor breaching their duty will certainly affect the outcome of the estate administration, Because of this risk, It is important that a beneficiary without delay request the removal of an executor who mismanages the estate. If an executor breaches their fiduciary duty, there may be serious financial and legal ramifications.

The Supreme Court of NSW can order the removal of an executor by revoking the grant of probate and issuing a new grant to an appropriate administrator. If there is no opposition to the motion the Registrar can deal with the issue in chambers (i.e without a court hearing). A beneficiary’s general distrust or personal dislike of an executor is insufficient reason for the court to remove the executor. The beneficiary must produce evidence that the executor has neglected their duties or displayed misconduct because of carelessness, incompetence or malicious intent.

A beneficiary should be patient and measured in their response to an executor. They should learn their rights as a beneficiary and the executor’s legal duties. A beneficiary should look for signs of conflict of interest and make a note of anything concerning. They should engage their own legal representative who can coordinate communication with the executor.

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