An executor not communicating with beneficiaries is a sign of legal misconduct. Beneficiaries of a Will have the right to receive their inheritance from the deceased. To receive this inheritance, the executor must contact them and inform them of when and how they can receive it. These people are the personal representative of the Will-maker and conduct the following after the Will-maker’s death:
- Locate and notify all beneficiaries named in the Will and inform them of their rights to inherit. This also allows beneficiaries and potential beneficiaries to contest or challenge the Will.
- Manage the estate, including paying off any outstanding debts, managing assets, and paying taxes in a timely manner.
- Distribute the assets according to the terms of the Will, once all debts and taxes have been paid
- Keep accurate records of all financial transactions and decisions made during the estate administration process.
- Work to resolve any disputes that arise between beneficiaries or creditors
- Close the estate and file final tax returns after the executor has completed all their tasks.
Unfortunately, some executors do not fulfil such obligations and duties. So, how do we deal with this? Let’s find out here.
The Beneficiaries of a Will
Before we know how to deal with an executor not communicating with beneficiaries, let’s shift our focus to beneficiaries first.
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.
As a beneficiary, all you should have to do is rely on the executor to update you as you grieve for the deceased. So, an executor not communicating with beneficiaries is one of the most problematic instances that beneficiaries may encounter.
Is the Will-Maker Able To Write a Will?
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 before they write a Will. 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 lack 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’ to the Will, 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 our blog: 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. So, executors should be readily available for any enquiries beneficiaries have about the Will.
While an irresponsible executor may get on the nerves of most beneficiaries, they should act politely and professionally. What kind of communication channel does the executor use? Regardless of the type, they should use a respectful tone if they are talking to the executor.
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 to court.
To start this, 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 the appointment of a new executor (or the second executor taking over). 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 such as an executor not communicating with beneficiaries. 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. Now, if an executor is not communicating with beneficiaries, then probate would not happen.
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. So, this is another duty that an executor should take note of.
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. As mentioned above, an executor not communicating with beneficiaries can lead to their appointment being transferred to another executor. A Will-maker can never have too many executors, and there’s no limit to appointing one. But, if you think about it, it might be easier to only have one or two executors for easier communication.
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. While 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 executor 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.
Do You Need a Trusted Lawyer and an Executor?
With all the legal implications above, you may have wondered where to hire a trusted lawyer and executor. You want someone that’s communicative, professional, and knows the ins and outs of Wills and state law. No one wants an executor not communicating with beneficiaries, especially if there are big assets on the line.
It would be so convenient to hire a person who could fulfil both roles, right?
What if we told you that we at JB Solicitors can be your lawyer and executor for your Will? These roles aren’t a new case at our firm. We have dealt with cases relating to executors 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.
Is there an executor not communicating with the beneficiaries of a Will? Contact and chat with an experienced probate lawyer today.
