Challenge an executor or administrator of a will

Challenge an executor or administrator of a will

Experiencing the loss of a loved one is among the toughest experiences you’ll ever face. If you suspect that the estate is being poorly administered by its executor or administrator if there is no will, we understand how this could further complicate your grief at a time that is already incredibly difficult.

Should you suspect that the executor of a loved one’s will is failing to fulfil their responsibilities, you have the option to take action against them. Their obligations involve gathering the assets of the deceased and allocating them as outlined in the will.

What is challenging an executor of will?

Challenging an executor of a will involves contesting the actions or decisions made by the person responsible for administering a deceased person’s estate. This can be done if there are concerns about their competence, misconduct, or failure to fulfil

What are the responsibilities of an executor of a will?

The responsibilities of an executor of a will are mainly administrative and can involve obtaining a Grant of Probate include:

1. Gathering and managing assets: You are responsible for identifying and collecting all the assets of the deceased person, such as bank accounts, investments, real estate, and personal belongings. You must also ensure that these assets are properly managed and protected during the probate process.
2. Paying debts and taxes: You are responsible for identifying and paying off any outstanding debts or taxes owed by the deceased person, from the estate. This may involve working with creditors, filing tax returns, and settling any outstanding financial obligations.
3. Distributing assets to beneficiaries: Once all debts and taxes have been paid, you are responsible for distributing the remaining assets to the beneficiaries named in the will. This may involve selling assets, transferring ownership, or distributing funds according to the instructions outlined in the will.
4. Managing legal proceedings: As an executor, you may need to initiate or respond to legal proceedings related to the estate, such as filing the will with the probate registry, defending the will against challenges, or resolving any disputes among beneficiaries.
5. Keeping accurate records: Throughout the entire process, it is crucial to maintain detailed and accurate records of all financial transactions, communications, and decisions made on behalf of the estate. This includes keeping track of expenses, receipts, and any correspondence related to the estate administration.

What are the grounds for making a claim against an executor of a will?

An executor is appointed to administer the estate of a deceased person according to the terms set out in their will and in accordance with the law. However, there may be circumstances where an executor’s conduct or decisions come into question. The grounds for making a claim against an executor of a will include:

Breach of fiduciary duty

Executors owe a duty of loyalty, honesty, and good faith to the beneficiaries of the will. They must act in the best interests of the estate. If they misuse or misappropriate estate assets or prioritise their interests above the beneficiaries’, they can be held liable for breach of fiduciary duty.

Mismanagement of estate assets

If an executor negligently manages the assets of the estate, resulting in financial loss, they can be held accountable. Examples include failing to insure valuable assets, neglecting to collect debts owed to the estate, or selling assets for less than their true value.

Failure to distribute assets

Beneficiaries can bring a claim if the executor unduly delays the distribution of estate assets or fails to distribute them in accordance with the will.

Failure to provide an account

Executors are required to maintain accurate records of their dealings and provide a detailed account of the administration of the estate. If they fail to provide this when requested, it can form the basis of a claim.

Conflict of interest

An executor should not have any personal interest that conflicts with their duty. If they make decisions which benefit them personally at the expense of the beneficiaries, it may give rise to a claim.

Overcharging

If an executor is taking fees or expenses from the estate that are excessive or not justifiable, beneficiaries can challenge the amounts being claimed.

Failure to pay taxes and debts

Executors have the responsibility to pay any taxes or outstanding debts of the deceased from the estate’s assets. If they fail to do this promptly, they can be held personally liable.

Improper investments

While managing the assets, if the executor makes investments that are not considered prudent and result in a loss to the estate, they may be held responsible.

Ignoring or misinterpreting the will

If the executor fails to follow the instructions outlined in the will or misinterprets them, it could provide grounds for a claim.

If beneficiaries believe that an executor has failed in their duties, it’s essential to seek legal advice. It may be possible to resolve concerns amicably without resorting to litigation. However, if concerns are not addressed, it might be necessary to apply to the court to remove and replace the executor or seek redress for any loss caused.