VIC Executor of Will Delaying Funds Distribution

[Richard]

My mother recently passed away. My sister was appointed Executrix and trustee of her will. We have not seen any documentation from her in 15 years. We have asked on numerous occasions to provide us with full accounting, assets and liabilities but to no avail. She is now delaying the distribution of funds and has informed us that she is helping herself to a commission, but as she was also named as a beneficiary she is not authorised to do so as there is no provision in the Will conveying the inclusion of commission and charging. I believe it is against wills and estate planning law to simply take whatever she likes without me and my brother agreeing to this.
What can we do?

 

[Sophea]

Hi Richard,

As executor your sister owes you and your brother certain obligations, these include the following:

1. The executor must inform each beneficiary of the nature and extent of their entitlement in the Will, including an estimate of when the each beneficiary might expect to receive their entitlement.
2. Upon request by a beneficiary, the executor is required to provide a copy of the Will in its entirety, however the beneficiary may be liable for the costs of its reproduction.
3. The Executor is required to inform a beneficiary if the distribution of his or her inheritance will be delayed and provide reasonable reasons for same.
4. The executor is required to keep good records of all transactions involving the estate and must keep the beneficiaries fully informed.
5. The executor must distribute entitlements to all beneficiaries within 12 months of the deceased's death.

Commission
With respect to commissions: as executor your sister is entitled to have any expenses she incurs paid from the assets of the estate, but she is not allowed to charge a fee or commission unless the Court, you as the beneficiaries or the Will allows it. If your sister wants to charge a commission, she needs to apply to the Supreme Court to have the Court fix the rate for commission. The maximum rate at which the Court may fix commission is 5% of the gross value of the estate, but the Court generally doesn't award a private executor commission more than 2.5% of the gross value of the estate. If she is helping herself she is breaching her fiduciary duty as executor.

Removing an executor
Your sister's duty as executor is to carry out the intent of the will and to act in good faith and with your best interests. If she does a poor or careless job, you can apply to the court to have her removed as executor. However it requires fairly serious mismanagement. Stealing from the estate or failing to adhere to proper accounting procedures may constitute sufficient grounds to remove her.

I would recommend writing a letter on behalf of both you and your brother demanding full accounts of what has been happening with the estate, stating that if she fails to do so within say 21 days, you will apply to the court for orders.

 

[Richard]

Hi, thank you very much for your quick response, I have spoken to my brother and he fears that by writing to her demanding full accounts may delay the distribution even further and we may not receive our full entitlement. He wants to receive the money first and then deal with things later.
She has also told me that she did not apply for Grant of Probate which is what we thought the delay was. Thank you

 

[Richard]

Hi, thank you very much for your quick response, I have spoken to my brother and he fears that by writing to her demanding full accounts may delay the distribution even further and we may not receive our full entitlement. He wants to receive the money first and then deal with things later.
She has also told me that she did not apply for Grant of Probate which is what we thought the delay was. Thank you

We have now received our funds but it is well below what we expected. We have asked for full accounting, with no reply. We did not receive a distribution statement, only the cheque sent by Express Post. What can we do as we have no idea what our parents financial position was. What sort of penalty can my sister incur? If she does not provide us with the information how do we go about getting the information ourselves. Is there a privacy law. I believe that once my mum has passed and funds have been distributed, my sister's role as Executor and Enduring Power of Attorney ceases. Your advise would be gratefully appreciated.