An executor not communicating with beneficiaries is a sign of misconduct. Beneficiaries of a Will have the right to receive their inheritance from the deceased. However, they cannot claim this without the executor’s permission.
But who is the executor, and why do beneficiaries have to wait for their say? What alternatives or remedies can they use if the executor is missing? Executors (also known as the Will-maker’s personal representative) have the fiduciary duty to administer a person’s estate upon their death. Their primary duties usually include:
- Notification of beneficiaries about the Will: The executor must locate and notify all beneficiaries named in the Will and inform them of their rights to inherit. This also gives beneficiaries and potential beneficiaries the opportunity to contest or challenge the Will.
- Managing the estate: The executor must manage the estate, including paying off any outstanding debts, managing assets, and paying taxes in a timely manner.
- Distributing assets: Once all debts and taxes have been paid, the executor must distribute the assets according to the terms of the Will.
- Keeping records: They must keep accurate records of all financial transactions and decisions made during the estate administration process.
- Resolving disputes: They must work to resolve any disputes that arise between beneficiaries or creditors
- Closing the estate: After the executor has completed all his/her tasks, he/she must close the estate and file final tax returns.
An executor not communicating with beneficiaries is one of the most problematic things in Wills and Estates law. Moreover, beneficiaries should have the right to know what they can receive from the deceased. Read on to find out more.
Executor Not Communicating With Beneficiaries: The Beneficiaries of a Will
Beneficiaries are typically individuals or organisations who are named in the Will to receive assets or estate property from the deceased person. Hence, they can include family members, close friends, and relevant charities or organisations in the deceased person’s life.
The testator (the Will-maker) has the freedom to choose anyone they wish to name as a beneficiary in their Will. However, testators must adhere to certain restrictions and legal requirements when they create a Will in Australia. These requirements may vary depending on the state, but they usually include:
- Testamentary capacity or mental capacity to write and understand the functions of a Will
- Age
- The testator’s signature in the Will
- Witnesses
- Other relevant provisions (such as leaving someone out of a Will or if the Will is subject to changes)
All of these factors are important not only when a testator nominates their beneficiaries but also in how they divide their assets.
An Executor’s ‘Fiduciary Duty’
All executors of a Will have a ‘fiduciary duty’, but what does this mean? Executors have this type of duty or legal obligation to act and prioritise the beneficiaries’ interests. So, an executor who refuses to communicate with beneficiaries is already a breach of this duty.
Read more about fiduciary duty in other fields of law: What Is Fiduciary Duty? | JB Solicitors
Executor Not Communicating With Beneficiaries: What Can You Do?
1. Approach the Executor
Yes, this is the most straightforward way for an executor not communicating with beneficiaries. Beneficiaries have a legal right to be kept informed about the status of the estate. They must also receive regular updates from the executor. Who would want to work with an executor who doesn’t contact beneficiaries?
Beneficiaries can attempt to reach out to the executor to request information about the estate. They may want to do this in writing to create a record of their attempts to communicate. Hence, beneficiaries should show any type of evidence, like call logs or screenshots of messages.
While an irresponsible executor may get on the nerves of most beneficiaries, they should act politely and professionally. So, beneficiaries should make sure to should avoid making any accusations or threats. Here are some tips to communicate with an executor:
- Express concerns that the executor not communicating with beneficiaries causes confusion and uncertainty among beneficiaries.
- Request an inspection of accounts.
- Arrange an agreement with the executor regarding the disposition of the deceased’s property.
- Ask if the executor is willing to step down from their role and appoint someone else.
2. Initiate Court Proceedings
If the executor continues not to communicate with you, you may initiate court proceedings. As mentioned, executors must fulfil their duties and engage with beneficiaries regularly. If they do not fulfil this duty, they can be called over court.
Beneficiaries can file a petition with the probate court to compel the executor to communicate with them or remove the executor from their role. Consequently, this action will typically lead to appointment a new executor. The court may grant this petition if the beneficiaries can prove that the executor is:
- Not acting in the best interests of the estate
- Not communicating with the beneficiaries; or
- Is engaging in executor misconduct
Beneficiaries should consult with a lawyer before opting for cases like an executor not communicating with beneficiaries. An estate lawyer can help them evaluate whether court action is necessary and can guide them through the legal process. The court can order the executor to complete the administration of the estate and distribute the estate’s assets if the executor fails to act.
In most cases, lawyers will offer mediation and arbitration in order to settle legal disputes without the court’s presence. This way, the Will can proceed to the probate phase.
What is Probate?
Probate is the legal process by which a court oversees the distribution of a deceased person’s estate. The probate process begins when the executor or an administrator (if there is no Will) files a petition with the probate court. In New South Wales (NSW), the Supreme Court of NSW handles the probate process. The process involves:
- Identifying and gathering the decedent’s assets
- Paying their debts and taxes; and
- Distributing the remaining assets to their beneficiaries under the terms of the Will.
Probate can be a lengthy and expensive process, and the costs and fees associated with it are typically paid from the estate’s assets. Some assets may be exempt from probate, such as assets held in a trust or jointly-owned property with rights of survivorship. That’s why it’s important to seek advice from a probate litigation attorney for such matters.
Documents and Forms You Need for Probate
Here is a list of documents and forms that you need to apply for probate:
| Documents | The original WillCodicils. These are documents that the testator wrote that set out changes to the WillThe testator’s death certificate |
| Forms | Summons for Probate (Form 111)Grant of Probate (Form 112)Inventory of Property (Form 117)Affidavit of Executor (Form 118) |
Note: Make sure to photocopy these documents when you want to initiate court proceedings with your probate lawyers.
Executor Not Communicating With Beneficiaries: FAQs
1. What if there is no Will?
A: If the decedent did not have a Will, his/her assets will be distributed according to the state’s laws of intestacy (dying without a Will). The deceased’s relatives or other qualified applicants may then file for letters of administration within 6 months from the date of death.
2. Can there be a second executor?
A: Yes. Usually, testators have provisions in their Will to appoint a second executor. However, testators must ensure that their multiple executors can act jointly in accordance with the Will.
3. When should executors notify the beneficiaries about the Will?
A: Beneficiaries should be notified of their rights under the will as soon as possible. However, there is no statutory definition of the latest notification time. In practice, it should be within the one-year period before applying for probate.
4. Can the executor sell property?
A: No. The property cannot be sold without a court order. Depending on what authority is given, the executor may not need approval from the beneficiaries before they sell real property from the estate. However, they may be required to give Notice of Proposed Action. This allows the beneficiary to have time to object to the sale.
5. What constitutes seccutor misconduct?
A: Executor misconduct may involve dishonesty, conflict of interest, and mismanagement of estate assets. Unreasonable delays from the executor or failure to act can be grounds for the court to remove the executor.
We Can Be Both Your Lawyer and Your Executor!
Do you constantly worry about your inheritance because of an incompetent executor? No one wants an executor not communicating with beneficiaries, especially if there are big assets on the line. Moreover, this incompetence disrespects the testator’s wishes.
This isn’t a new case for us at JB Solicitors. We have dealt with cases relating to Wills and Estates and worked tirelessly with beneficiaries. From the appointment of executors and how to draft a Will, we can ensure that a testator’s wishes are always upheld.
Did you know that we can also act as executors? You don’t have to worry about an executor not communicating with beneficiaries when we handle the estate administration of a Will. Not only do you have someone to keep your Will safe, but also explain to you the intricacies of Wills and estate law.
Is there an executor not communicating with the beneficiaries of a Will? Contact and chat with an experienced probate lawyer today.
