I Don’t Trust The Executor (WA)

Executors play a critical role in the administration of deceased estates. The executor has extensive power to act for the estate for the benefit of the beneficiaries. Most executors discharge this responsibility very well. They invest their time and energy, often without payment, to facilitate the testator’s last wishes. However, executors may misuse their power, either through incompetence or misconduct. This article looks at what can be done when interested parties don’t trust the executor of an estate in WA.

The Testator Needs To Trust The Executor

One of the most important decisions that a testator makes is who to appoint as executor. An executor is the deceased’s personal representative. Many testators choose to make their main beneficiary their executor. This is a sensible choice because the executor is then working in their own interests. Alternatively, a will-maker might choose to name a professional (like their lawyer or accountant) to act as their executor as they will be unbiased and independent. Appointing a professional executor is wise if the deceased estate is complex or there is likely to be conflict between the beneficiaries.

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

Do The Beneficiaries Have To Trust The Executor?

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

As the executor works in the beneficiaries’ interests, the beneficiaries need to feel they can trust the executor. Executors must be honest with the beneficiaries, provide them with critical estate information promptly, work competently and in a timely manner to administer the estate and protect its assets. However, an executor is not employed by the beneficiaries. The executor represents the testator and should focus on administering the deceased estate according to their instructions.

A beneficiary may feel that an executor takes too long or is unresponsive to their requests for information. A beneficiary may also be worried that the administration of an estate is taking too long. These are common concerns as estate administration is often slow. If a beneficiary has concerns about the efficiency or communication of the executor, they should first speak to the executor about these concerns. The beneficiary should first approach the executor gently as the executor does not work for the beneficiary and is usually not paid.

Alternatively, there may be evidence that an executor is actually acting improperly. The precise nature of the evidence will depend on the situation, but an interested party may notice concerning behaviour by the executor. If this happens, the beneficiary can take steps to protect the estate from the executor.

Rights Of Beneficiaries Who Don’t Trust The Executor

The Administration Act 1903 gives executors extensive power over deceased estates. For instance, an executor has the power to drain bank accounts, sell assets, and transfer real property into their name. These are all legitimate activities that they need to do to finalise the deceased estate. However, these actions can also be used to cover an executor’s abuse of their position. One way that a beneficiary can guard against abuses of power is to know the contents of the will. A beneficiary is entitled to obtain a copy of the will and can then monitor the executor’s actions.

For instance, an executor needs to keep complete financial records on the distribution of the deceased estate. Under the Non-Contentious Probate Rules 1967, executors must provide these records to the beneficiaries and file the accounts in the Supreme Court. This is known as passing the accounts. The executor must also inform beneficiaries of any potential problems with the estate. If the executor is not forthcoming with news and records, a beneficiary can seek updates on the estate administration.

Executor misconduct is more likely to occur when the beneficiaries are unfamiliar with the rights and responsibilities of an executor. If the executor is aware that they are being scrutinised, they are far less likely to engage in misconduct. Therefore, it is in the beneficiaries’ interests to remain engaged with the executor.

A beneficiary must respect the testator’s decision about who to appoint as executor, even if they are not happy with the choice. However, if the beneficiary has actual evidence that the executor has behaved dishonestly or been guilty of misconduct, they should take action before harm comes to the estate

Removing An Executor In WA

The Supreme Court of WA has the power to revoke a grant of probate, effectively depriving the executor of their authority over the deceased estate. The court will only remove an executor if they have breached their fiduciary duty. As such, a beneficiary must have actual evidence that an executor has engaged in fraud, misconduct or incompetence. It is not enough that the beneficiaries simply do not trust the executor. 

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

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 of working in higher education, Nicola joined Armstrong Legal in 2020.
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