I Don’t Trust The Executor (Qld)

When a testator chooses an executor, they are entrusting their estate to that person. The testator expects their executor to follow the wishes set out in their will and ease the process for their loved ones. However, there are instances when an executor has mishandled the administration of a deceased estate. This article outlines the options for beneficiaries who don’t trust the executor to properly administer an estate in Queensland.

Does it matter if you don’t trust the executor?

An executor has a fiduciary duty to put the interests of the estate before their own advancement or enrichment. They must protect the estate assets while keeping them separate from their own assets. As part of this legal responsibility, an executor also has an obligation to be honest to all the parties involved, especially the beneficiaries of the estate. An executor does not need to answer every question from a beneficiary, but they must keep them informed of all relevant updates to the administration of the estate.

It is not unusual for a beneficiary to express distrust in an executor because they are still waiting for their inheritance. The beneficiary will often attribute this delay to the executor’s incompetence or even misconduct. In reality, it is not advisable for an executor to distribute bequests until they have waited at least six months for creditors and claimants to come forward. A beneficiary in Queensland should allow a year to pass before they accuse an executor of malicious intent in withholding a bequest.

Rights Of Beneficiaries Who Don’t Trust the Executor

An executor has a great deal of power over a deceased estate, but they are still subject to oversight. Under the Succession Act 1981, a beneficiary can ask for updates on the administration of the estate and is entitled to know about any developments that could affect or delay their bequest. For instance, a beneficiary is entitled to know if someone makes a legal claim against the estate (such as a Family Provision Claim) or someone challenges the validity of the will itself. In either of these instances, the executor must inform the beneficiaries if there is a possibility that the action could impact their interest in the estate.

A beneficiary who takes an active role in following the administration of the deceased estate is the most likely person to uncover any malfeasance. However, it is important for a beneficiary to distinguish between genuine concerns over the administration of the estate and personal feelings. A beneficiary may not personally like an executor, but they need to respect the testator’s choice of personal representative.

A testator will usually have thought very seriously about their choice of executor. Sometimes a testator will even consult their solicitor as to who would be best suited to undertake the administration of the deceased estate. The Supreme Court of Queensland observed in Baldwin v Greenland [2006] that a testator may use any criterion to choose an executor, whether it is based on necessity, loyalty, respect, professional expertise, or some other unknowable reason.

It is not up to a beneficiary to question the testator’s choice of executor. Even if the beneficiary strongly believes that there is a more suitable candidate to act as executor, this is not sufficient reason to remove an executor. The court demonstrated in Budulica v Budulica [2017] that they will not arbitrarily interfere with a testator’s choice of executor. Even though the executor, in this case, had made several errors in administering the estate, the court declined to remove the executor. The court concluded that these errors were not sufficient reason to believe that the executor could not properly complete the administration of the estate.

A beneficiary should not question the testator’s wishes in this matter except under exceptional circumstances. For instance, if the attitude or behaviour of the executor is untenable, then it may be in the interests of everyone involved for that executor to be removed.

Removing An Untrustworthy Executor

The Supreme Court of Queensland can remove an executor by revoking the grant of probate. Typically, the court will only do this if the executor’s behaviour is contrary to the best interests of the estate, because of executor fraud, misconduct or incompetence. Essentially, the court will remove an executor from their position if the beneficiaries would be better off without this specific person administering the estate.

You may instinctively distrust an executor and not know exactly why you don’t trust them. Your intuition may actually be correct, and you have good cause for not trusting the executor in charge of a deceased estate. You should act quickly if you feel that there may be legitimate issues that put your interests as a beneficiary at risk. The Queensland team at Armstrong Legal can help you investigate a possible breach of trust. Our team can even help you gather evidence to have the executor removed from their position. Please telephone 1300 038 223 or email today for peace of mind.