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Executor problems in Australian deceased estate administration

  • 12 月 7, 2024

Home » 澳洲法律解读 » 遗嘱 » Executor problems in Australian deceased estate administration

Conflicts of interest

An executor who is appointed may be a family member or relative of the testator. Alternatively, it may be the Will maker’s lawyer. Usually the Will maker’s friends and family relatives will not charge executor’s commission, but an executor lawyer would. Therefore, careful consideration should be made when writing a Will as to whether you want a paid professional to be involved who has no beneficiary interest or have a family member appointed who will work for free as they will receive the estate as a beneficiary written in the Will.

Problems of administering the estate as an executor

An executor may put their own interests above that of the estate. For example, they might borrow money from the estate or lend it to friends or family relatives at a less than market rate. An executor might also be encouraged to over-service the estate to increase their costs. 

Executor misappropriating estate funds

Where the beneficiary was not close to the testator, they may not be aware of the testator’s estate value. This might lead to the executor or family relatives withholding assets as it is easier to hide them. In this respect, personal property that is of substantial value, such as paintings or antique furniture may be misappropriated. It is therefore important for the executor to have a quick look at the deceased’s residence as soon as possible after being made aware the testator has passed away. Most of the testator’s valuable physical items will be apparent when inspecting the deceased’s house. The inspection should occur with at least one of the major beneficiaries to reduce any perceived theft allegations later. It also serves as a warning to beneficiaries they may notice if things go missing. An executor might also not declare an asset in the inventory but produce the grant of probate to deal with it. There is always some risk that estate assets will be misappropriated. Therefore, the Will Maker should prepare a list of assets and provide this information to the executor and/or major beneficiaries in anticipation of their passing.

Issues with valuing estate assets

Executors should obtain a valuation of estate assets as soon as possible. This will prevent the beneficiaries coming back later to say the assets are being sold too cheaply. Another option would be to sell the property at a public auction. If personal property was to be divided amongst the beneficiaries, the executor should invite the beneficiaries to nominate one or more items and seek all other beneficiaries agreement before distributing them. A valuation or agreed value can then be used to deduct from each beneficiary’s share in the estate. 

Delay in administering estate

There are many factors which determine the finalisation of administration of deceased estates. This may include valuing or selling estate assets, obtaining final taxation clearance and distributing funds to the beneficiaries as per the Will. Executors should manage expectations of final distribution through regular communication and updates to the beneficiaries. 

Communication issues with executors

Lack of communication is often an issue that beneficiaries have with executors. It is important for the executor to notify beneficiaries of their entitlements and to regularly update them on the progress of the administration of the estate. It is generally good to disclose information that is readily available publicly and to disclose information as it becomes available to you. However, some balance should be made so that the costs of providing information to the beneficiaries that are unnecessary or repetitive are avoided. 

Dealing with impatient beneficiaries

The executor should avoid doing things that are against their better judgement or against the law to satisfy beneficiaries’ wishes. The prime duty for executors is to act in the best interests of the estate and to comply with the law. This may result in some criticism and enquiry from the beneficiary which can be ignored if of no merit. Nevertheless, the executor should explain in writing their reasons for the delay and their decision to act in a particular manner so that they can limit their personal liability.

 

 

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