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Executor Living In The Property

An executor of an estate has broad authority to manage the property of a deceased. Because of that, it can sometimes be difficult to know when the actions of an executor are appropriate. For instance, an executor living in a property that is part of the deceased estate may be doing so legally or unlawfully, based on their intentions and the specific circumstances. This article explains when it may be legitimate to have an executor living in the property, and what to do if there is cause to believe that the executor is abusing their position of trust.

Powers Of An Executor

A significant amount of trust is vested in an executor of a deceased estate. The executor will actually assume legal ownership of the properties contained in the estate until they can be dispersed according to the testator’s wishes or the relevant legislation.

In discharging their duties, an executor has a legal responsibility to act in the best interests of the estate and the beneficiaries of the will. An executor has a fiduciary duty to the beneficiaries, which precludes the executor from receiving any personal benefit from their executorship. An executor is not entitled to put his or her own interests above their duty to the deceased estate and its beneficiaries, or to benefit themselves through their role beyond their entitlement under the will.

An executor is also required to settle an estate as quickly as possible, typically within the “executor’s year” after the deceased passes away.

Executor Living In the Property

When an executor is living in an estate property, the beneficiaries can obtain a court order to compel the executor to sell the house. The executor can also be forced to pay the legal fees associated with obtaining this court order. In such cases, the beneficiaries may need to ask the courts to remove the executor from the role. The courts will order this removal if the executor is acting contrary to the best interests of the estate or the beneficiaries.

In the course of administering the estate, the executor may find it more convenient to move into the property. There can be undeniable advantages to the executor living in the property. It can save the estate the cost of the executor’s accommodation and allow the executor to be on hand for house repairs, valuations and appraisals. It also allows the executor time to compile the list of household contents in the most convenient manner and deter thieves and vandals. In that case, it is quite acceptable for an executor to live in a house if it is done in the best interests of the beneficiaries.

The circumstances change when someone other than an executor is living in the deceased’s property. For instance, if the property is tenanted, the executor must wait until the lease ends to sell the house, or sell the property tenanted. If a beneficiary other than the executor is currently residing in the property, then the executor should obtain the consent of all beneficiaries for the beneficiary to continue living in the property.

Executor Legally Living In Property

There are circumstances where an executor of an estate will have an absolute right to live in a deceased’s property. For instance, an executor who owns a property in joint tenancy with the deceased owns the property outright upon the death of their spouse. In such cases, an executor has the right to do anything they wish with the property as it does not form part of the deceased estate.  On the other hand, if the deceased owned the property with the executor as tenants in common, the deceased had the power to leave their share of the property to someone else in their will.

Executor As Beneficiary

Sometimes a property is bequeathed in equal shares to several beneficiaries, including the executor, with the intention that the house is sold and the proceeds divided amongst the beneficiaries. An executor who was living in such a property before the deceased passed away might want to continue living in the property until the estate is fully administered. In that case, the executor should obtain the agreement of the other beneficiaries and ensure that they sell the property in a timely manner.

Beneficiaries in this circumstance should also be aware that if the executor is carrying all the costs of maintaining the house, they themselves are liable to pay their share in order to maintain the property until it can be sold. However, the beneficiaries may agree that these costs are offset against the income that the property could have attracted if the executor was not living in the house.

An executor who is the sole beneficiary of the property under the will is usually able to live in the house even before the assets of the estate are distributed.

The contested wills team at Armstrong Legal can help if you are concerned that an executor is improperly living in a property, or is in any way mismanaging the deceased estate. Please get in touch with the team today on 1300 038 223 for any legal assistance.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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