Is the Executor doing the right thing? Knowing your rights as a beneficiary.
The passing of a family member or friend signifies undoubtedly a time of grieving and sadness.
Death and the legal implications surrounding it are often a sensitive issue. Of the legal implications, the most common is Probate. But what exactly is Probate?
Probate is a court order granted by the Supreme Court of New South Wales which accepts the validity of the Will of the deceased.
If you are named as an Executor of a Will, the Grant of Probate is the legal document which gives you the right to administer the estate of the deceased. The role of the Executor is vital to the effective and efficient distribution of the estate amongst its respective beneficiaries. Before we consider the rights of a beneficiary, let’s discuss the role of the Executor.
What is an Executor and what is their role?
An Executor is the person listed under the Will who is responsible for administering the estate of the deceased in accordance with their last wishes. In short, they are responsible for liaising with the beneficiaries of the Will to facilitate the distribution of assets and possessions.
The role of the Executor may also include further responsibilities including overseeing funeral plans, identifying any possible assets and liabilities, and paying any unpaid debts. The demanding nature of this role means that this task can be burdensome especially considering it lacks any real incentive for the Executor.
What is a beneficiary?
A beneficiary is someone listed under the Will who is entitled to some share of the estate.
What options are available to me as a beneficiary?
As mentioned earlier, the role of the Executor is an immense responsibility which cannot be taken lightly. Unfortunately, Executors don’t always do what they’re supposed to. Whether it’s because they have not been properly advised of their responsibilities, or they’re just plain lazy, you as a beneficiary shouldn’t be made to suffer.
We have spoken about the role of the Executor. Now let’s flip the coin. What happens when the Executor doesn’t do the right thing? In fact, let’s delve into this a little deeper. What options are available to you a beneficiary when the Executor is not acting in accordance with the wishes of the deceased? The answer is simple, you can apply to have Probate revoked, effectively removing the Executor from their position.
How can Probate be Revoked?
Probate can be revoked by two means. These are by Statute under the Probate and Administration Act 1898 (NSW) and by the Court.
The statutory power of the Court to revoke Probate is enshrined in the Probate and Administration Act. This Act is concerned with the proper administration of an estate. If this process is delayed or not carried out in a way that is stipulated in the Will, the Court will act to revoke the existing Grant of Probate.
Section 40C(3) of the Act states:
“The Court may at any time, whether before or after the revocation, make such orders, including an order for an injunction against the executor or administrator or any other person, and an order for the appointment of a receiver, as the Court may deem proper for protecting the estate”.
Furthermore, the Court itself possesses the power to revoke Probate where there has been an absence of ‘due’ and ‘proper’ administration of the estate amongst the beneficiaries of the Will.