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I Don’t Trust The Executor (WA)

An executor plays a critical role in deceased estate administration. The executor has extensive power to act for the estate to benefit the designated beneficiaries. Most executors discharge this responsibility extremely well. They give their time and energy, often without payment, to carry out the testator’s last wishes. However, there is always a risk that an executor will abuse their power, either through incompetence or misconduct. This article looks at what someone should do if they don’t trust the executor of an estate in Western Australia.

The Testator Needs To Trust The Executor

One of the testator’s most important decisions is their choice of executor. An executor is the “personal representative” of the deceased, literally representing the deceased while wrapping up their affairs.

Many testators choose to make their primary beneficiary the executor of the estate. This is a sensible choice, as the executor works in their own interests. Alternatively, a testator might name a professional (such as a lawyer) to act as an unbiased and independent executor. Appointing a professional executor is particularly wise if the deceased estate is complex or the beneficiaries are likely to fight amongst themselves.

Whether the testator chooses a friend, family member or professional as executor, they must trust the executor to carry out their testamentary instructions. From a practical perspective, it is also important that the executor has the necessary administration and communication skills to discharge their duties competently.

Do The Beneficiaries Need To Trust The Executor?

The executor’s fiduciary duty is to put the estate before their own interests. This duty involves guarding the assets of the estate and defending the will. As such, the executor is responsible for legally protecting against any challenge of the testator’s wishes.

As the executor works in the beneficiaries’ interest, they should feel able to trust the executor. Indeed, an executor must be honest with the beneficiaries, provide them with critical estate information promptly, work competently and with reasonable speed to administer the estate and protect the estate assets. However, an executor is not in the employ of the beneficiaries. The executor represents the testator and should focus on administering the estate according to the testator’s instructions.

A beneficiary may feel that an executor is too slow or unresponsive to their requests for information. A beneficiary may also be concerned that the administration of an estate is taking too long. These are common concerns as estate administration can be a slow process. If a beneficiary has concerns about the executor’s efficiency or communication, they should first take these concerns directly to the executor. The beneficiary should give the executor a gentle nudge rather than a reprimand, as the executor does not work for the beneficiary and is usually an unpaid volunteer.

Alternatively, there may be actual evidence that an executor is acting improperly. The precise nature of the evidence will depend on the situation, but a beneficiary may notice concerning behaviour. If a beneficiary does not trust the executor, they can take steps to protect the estate.

Rights Of Beneficiaries When They Don’t Trust The Executor

Under the Administration Act 1903, an executor has extensive power over a deceased estate. For instance, an executor can drain bank accounts, sell assets, and transfer real property into their own names. These are all legitimate activities that the executor needs to do to finalise an estate. However, this behaviour can also conceal an executor’s abuse of power. One way that a beneficiary can defend against abuse of power is to know the will’s contents. A beneficiary is entitled to obtain a copy of the will and can use this knowledge to help monitor the executor’s actions.

For instance, an executor needs to keep complete financial records on the deceased estate distribution. According to the Non-Contentious Probate Rules 1967, every executor must provide these records to the beneficiaries and file the accounts in the Supreme Court (“passing the accounts”). The executor also must inform beneficiaries of any potential problems with the estate (such as pending legal action). If the executor is not forthcoming with news and records, a beneficiary can ask for updates on the estate administration.

Executor misconduct is more likely when the beneficiaries are unfamiliar with the executor’s rights and responsibilities. If the executor is aware that they are under scrutiny, they are far less likely to engage in misconduct. Therefore, it is in each beneficiary’s interest to communicate regularly with the executor.

A beneficiary must respect the testator’s decision, even if they are not happy with the choice of executor. However, if the beneficiary has actual evidence of executor dishonesty or misconduct, they should move before harm comes to the deceased estate

Removing An Executor In Western Australia

The Supreme Court of Western Australia has the power to revoke a grant of probate, effectively removing an executor’s authority over the deceased estate. The court will only remove an executor who has breached their fiduciary duty. As such, it is not enough for a beneficiary to not trust an executor. They must have actual evidence of an executor’s fraud, misconduct or incompetence.

If you are worried about the trustworthiness of an executor, it is better to be safe than sorry. The team at Armstrong Legal can help you determine whether an executor is acting appropriately. Our team can even help you gather evidence to remove an executor from their position. Please call 1300 038 223 or email our team today for 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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