Can an Executor Give Away Property? (Qld)

In Queensland, the executor of a deceased estate is responsible for carrying out the deceased’s wishes as expressed in their will, as long as these wishes are lawful and possible. This includes the responsibility for ensuring that the assets of the estate are protected until they are distributed to the rightful beneficiaries. A fairly common question amongst beneficiaries is whether the executor can give away the deceased’s property. As discussed below, an executor can only give away property in specific, lawful circumstances, and only in accordance with the will, other legal obligations, and their fiduciary duties.

Executor control of estate property

Under the Succession Act 1981, an executor who is appointed in a testator’s will has a responsibility to:

• locate and secure the deceased’s latest will;
• apply for a grant of probate (if this is required);
• identify, value and insure the deceased’s assets (where necessary);
• pay any debts and taxes owed by the estate;
• defend the estate against challenges and contests (if required); and
• distribute the remaining assets in accordance with the will.

Once the executor receives a grant of probate from the Supreme Court, they are vested with the assets of the deceased estate. This means that the executor has legal ownership (and often physical possession) of the deceased’s assets until they are safely passed to the rightful owner. For instance, if an asset of the estate is real estate, the executor will assume ownership of the property, and their name will appear on the relevant documentation. In those circumstances, an executor might think that they have the legal authority to unilaterally give away this property.

Although an executor has legal authority over the estate assets, this authority is constrained by strict fiduciary duties to the estate and its beneficiaries. This duty imposes an obligation to act in good faith, with honesty and an intention to fulfil the deceased’s wishes. The executor must manage the estate prudently and in accordance with the law and ensure that the estate is preserved and properly managed until it is distributed. They must not use their position to benefit themselves or others at the expense of the estate. As such, any action to give away the property of the estate must comply with the executor’s responsibilities. If an executor gifts property in a way that contravenes their fiduciary obligations, they may be held personally liable for any resulting loss.

Lawfully giving away property

Whether an executor can lawfully give away property depends on the following factors:

Terms of the will

The executor must follow the specific instructions outlined in the will regarding asset distribution. Naturally, an executor can give away property in accordance with the testator’s wishes. A will can even instruct the executor to give away any remaining property after the bequests are fulfilled. For example, the will might state that the executor should give away the remaining household furniture to a charity. Failing to carry out these directions would constitute a breach of duty.

Legal obligations

The executor is legally obliged to satisfy all debts, taxes, and expenses before distributing or gifting any property. Executors can thus transfer property to pay off the deceased’s debts or meet tax obligations if the estate lacks sufficient liquid assets. In addition, the courts can authorise or direct the executor to give away property in specific circumstances, such as to fulfill a family provision order. Executors must comply with such orders, even if they contradict the will’s original terms.

Beneficiaries’ consent

In some cases, the executor may act with the consent of all beneficiaries to give away property, even if this distribution differs from the terms of the will. For example, a family might unanimously agree that an executor should give a particular piece of jewellery to the deceased’s niece in memory of her aunt, even though she was not a beneficiary in the will. In practice, this type of agreement must be documented to protect the executor from liability.

Items with no value

An executor is frequently tasked with arranging for the disposal of trash and valueless property from the deceased’s home. This may involve giving the items to charity or using estate funds to arrange for the collection and transfer of rubbish. If, in this process, the executor disposes of an item with monetary value (even accidentally), then they may be liable for mismanaging the assets of the estate. While this would mean that an executor should ask before discarding any household items, it is unlikely that an executor would be held accountable for utilising their common sense.

An executor who gives away property in any unsanctioned manner is in breach of their fiduciary duties and may face legal consequences. For example, if an executor gifts a property to a friend without the consent of the beneficiaries or authorisation from the will, they could be held legally accountable. In those circumstances, the executor may be required to compensate the estate for any loss resulting from their actions. Beneficiaries can initiate legal proceedings to recover mismanaged or improperly distributed assets. Additionally, the court may remove the executor for misconduct or failure to act in accordance with their duties.

To avoid disputes and legal risks, executors should, wherever possible, keep beneficiaries informed and seek their consent to help prevent misunderstandings and disputes. Executors should also consult a Go To Court solicitor to ensure they understand their duties and powers under the will and Queensland law.

Contact the team on 1300 636 846 for advice on any aspect of estate administration.