An executor not communicating with beneficiaries is a sign of misconduct. If this is the case, what can beneficiaries do if they cannot contact the executor? What alternatives or remedies can they use?
Executors (also known as the Will-maker's personal representative) have the fiduciary duty to administer a person's estate upon their death. Their primary duties usually include:
- Notification of beneficiaries: The executor must locate and notify all beneficiaries named in the Will and inform them of their rights to inherit. This also gives beneficiaries and potential beneficiaries the opportunity to contest or challenge the Will.
- Managing the estate: The executor must manage the estate, including paying off any outstanding debts, managing assets, and paying taxes in a timely manner.
- Distributing assets: Once all debts and taxes have been paid, the executor must distribute the assets according to the terms of the Will.
- Keeping records: They must keep accurate records of all financial transactions and decisions made during the estate administration process.
- Resolving disputes: They must work to resolve them if any disputes arise between beneficiaries or creditors
- Closing the estate: After the executor has completed all his/her tasks, he/she must close the estate and file final tax returns.
An executor not communicating with beneficiaries seems to be one of the most problematic things when discussing Wills and Estates. Moreover, beneficiaries should have the right to know what they can receive from the deceased. Read on to find out more.
Who Are the Beneficiaries of a Will?
Beneficiaries are typically individuals or organisations who are named in the Will to receive assets or estate property from the deceased person. Beneficiaries can include family members, close friends, and relevant charities or organisations in the deceased person's life.
The testator (the Will-maker) has the freedom to choose anyone they wish to name as a beneficiary in their Will. However, testators must adhere to certain restrictions and legal requirements when they create a Will in Australia. These requirements may vary depending on the state, but they usually include:
- Testamentary capacity
- The testator's signature in the Will
- Other relevant provisions (such as leaving someone out of a Will or if the Will is subject to changes)
Executor Not Communicating With Beneficiaries: What To Do?
1. Approach the Executor
Beneficiaries can reach out to the executor if he/she is not communicating with them. Beneficiaries have a legal right to be kept informed about the status of the estate. They must also receive regular updates from the executor. An executor not communicating with beneficiaries may leave beneficiaries frustrated and uncertain about the status of the estate.
Beneficiaries can attempt to reach out to the executor to request information about the estate. They may want to do this in writing to create a record of their attempts to communicate. The beneficiaries should be polite and professional in their communication and avoid making any accusations or threats. Beneficiaries can achieve this if they:
- Express their concerns that an executor not communicating with beneficiaries causes confusion and uncertainty among beneficiaries.
- Request an inspection of accounts.
- Arrange an agreement with the executor regarding the disposition of the deceased's property.
- Ask if the executor is willing to step down from their role and appoint someone else.
2. Initiate Court Proceedings
Beneficiaries can initiate court proceedings if the executor fails to communicate with them. Executors must fulfil their duties and engage with beneficiaries regularly. If not, beneficiaries may be able to file a petition with the probate court to compel the executor to communicate with them.
They may also petition to remove the executor from their role. This typically leads to appointing a new executor. The court may grant this petition if the beneficiaries are able to prove that the executor is:
- Not acting in the best interests of the estate
- Not communicating with the beneficiaries; or
- Is engaging in executor misconduct
Beneficiaries should consult with a lawyer before opting for cases like an executor not communicating with beneficiaries. An estate lawyer can help them evaluate whether court action is necessary and can guide them through the legal process.
In most cases, lawyers will offer mediation and arbitration in order to settle legal disputes without the court's presence. This way, the Will can proceed to the probate phase.
What is Probate?
Probate is the legal process by which a court oversees the distribution of a deceased person's estate. The probate process begins when the executor or an administrator (if there is no Will) files a petition with the probate court. In New South Wales (NSW), the Supreme Court of NSW handles the probate process. The process involves:
- Identifying and gathering the decedent's assets
- Paying their debts and taxes; and
- Distributing the remaining assets to their beneficiaries in accordance with the terms of the Will.
Probate can be a lengthy and expensive process, and the costs and fees associated with it are typically paid from the estate's assets. Some assets may be exempt from probate, such as assets held in a trust or jointly-owned property with rights of survivorship. That's why it's important to seek advice from a probate litigation attorney for such matters.
Executor Not Communicating With Beneficiaries: FAQs
1. What if there is no Will?
A: If the decedent did not have a Will, his/her assets will be distributed according to the state's laws of intestacy (dying without a Will). The deceased's relatives or other qualified applicants may then file for letters of administration within 6 months from the date of death.
2. Can there be a second executor?
A: Yes. Usually, testators have provisions in their Will to appoint a second executor. However, testators must ensure that their multiple executors can act jointly in accordance with the Will.
3. When should executors notify the beneficiaries about the Will?
A: Beneficiaries should be notified of their rights under the will as soon as possible. However, there is no statutory definition of the latest notification time. In practice, it should be within the one-year period before applying for probate.
4. Can the executor sell property?
A: No. The property cannot be sold without a court order. Depending on what authority is given, the executor may not need approval from the beneficiaries before they sell real property from the estate. However, they may be required to give Notice of Proposed Action. This allows the beneficiary to have time to object to the sale.
Importance of Seeking Legal Advice From Probate Lawyers
An executor not communicating with beneficiaries can be troublesome especially if beneficiaries are financially dependent on the deceased. That is why it is important for beneficiaries to seek legal advice from JB Solicitors for cases like this.
Our lawyers are experienced in handling Wills and estate matters such as probate, the appointment of executors, and Will drafting. We can also act as executors and ensure that beneficiaries receive estate assets and inheritance in a timely and efficient manner.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.