Common Wills and Estates Issues

Common Wills and Estates Administration Issues

Some common wills and estates administration issues are set out below:

Common Wills and Estates Issue 1

The will does not appoint an executor or the executor refuses to act

The beneficiaries can apply to the court to appoint another person or body to administer the estate. Usually the person entitled to the residue of the estate or another share of the estate may be appointed as executor, however where there is no fit person of majority age, the court may order that the Public Trustee administer the estate.

Common Wills and Estates Issue 2

Joint executors do not agree

Conflict between jointly appointed executors can hinder or even halt the administration of an estate due to non consensus. In this situation, executors can seek directions from the court as to how to proceed. The application can be made by only one of the executors.

In circumstances where one of the executors has a conflict of interest, has failed to account to the other executors, is guilty of some misconduct or where there has been a complete breakdown in communication leading to delays and extra costs the court has the power to make orders to remove a co-executor. This order will only be made though in exceptional circumstances. The court will not lightly deprive the testator of his or her choice of executor(s) however it must also have regard to the due and proper administration of the state and the best interests of the beneficiaries.

Common Wills and Estates Issue 3

Beneficiaries do not agree with executor’s decisions

The executor is the person appointed to make decisions in the administration of the estate. He or she does not require the agreement of all the beneficiaries to take a certain course of action provided it is in accordance with the terms of the will. If the executor proposes that assets be distributed in a way other than what is stated in the will, consent of all beneficiaries will need to be obtained.

If the beneficiaries are concerned that the executor is not carrying out the wishes of the testator or is involved in misconduct they can apply to the court to make a direction as to how the estate is to be administered or remove the executor.

Common Wills and Estates Issue 4

Executor delaying distributing the estate

An executor of a will owes a duty to beneficiaries to:

  1. distribute the estate within a reasonable time, and
  2. inform them and provide adequate reason if there will be a delay in the distribution.

In general, an executor must collect together the estate assets, pay debts and distribute inheritances to beneficiaries within 12 months of the deceased’s death, provided it is reasonable to do so. In certain cases, the will may allow for the administration to be delayed or legitimate issues might arise in the administration that will provide adequate reason to postpone distribution of inheritances. In this case, beneficiaries are limited under wills and estates law as to what they can do to speed up the payment of their inheritance.

However, if delays are simply being caused by an executor’s tardiness or conflict between executors, an application can be made to the court to make a direction regarding the administration or in extreme cases, removing the executor (see above).

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