Executors of estates – the person in charge of making the arrangements after someone dies – are human too, and sometimes they behave badly or unfairly. If a dispute arises between the executor of an estate and the beneficiary of the estate, or between two or more beneficiaries, there are arrangements in place to deal with this in the courts. Read more about executors here.
If you are involved in an estate dispute, contact Vanessa Ash.
An executor can be taken off the case for bad behaviour
An executor must act with ‘due diligence’, meaning the beneficiaries of an estate are the prime concern. Not the executor themselves. An executor cannot profit from their own position of power, and must be sensible and reasonable. All money and assets must be accounted for. If this doesn’t happen because the executor is not doing their job properly, then after all other dispute resolution tactics have failed, you can go to the courts and request that the executor be removed from their role. You will need a lawyer for this, since it’s a serious task to remove an executor – serious misconduct must be provable.
You must prove that the executor has been convicted of a crime or imprisoned since they have been the executor of the will, cannot do their job due to physical or mental disability, or the executor has a conflict of interest or engaged in serious misconduct. Serious misconduct may be stealing, failing to keep good records, or failing to comply with an order. Mismanagement of the estate fits into this category. If the relationship between the executor and the beneficiaries is so degraded that the executor cannot do their job, a removal may be considered.
When two executors cannot agree
Sometimes two executors of an estate disagree and cannot properly administer the estate, the next of kin can take the executors to court to try to have one or both of them removed or substituted.
An uncooperative executor
Any issues with the will or the conduct of the executor that can be foreseen prior to probate being granted can have a caveat lodged, which prevents probate from being granted until the caveat is removed. If the executor is not taking any steps to apply for probate, this will act as a ‘hurry up’. If probate is not applied for in time, the next person who is entitled to be the executor of the state can make the application for probate. Issues after probate is granted will need to be taken into court. This process is complex, and requires a lawyer.
When beneficiaries cannot agree
If there are disputes between beneficiaries, usually between the division of assets, these can be resolved via legal process. A classic fight is over an asset – let’s say a house – that is said in the will to be split between the children equally. The executor is now the piggy in the middle of the fight, and feel pressure to act in a certain way, however the executor must always act in the best interests of all beneficiaries.
Mediation is often a good solution, but sometimes this isn’t enough and court is used. It is our view that settling out of court provides superior results in most cases with less emotional fallout and less cost. Wasting an inheritance on legal fees is not a good outcome.
Write your own story. Call Vanessa Ash and Associates today.