NSW Executor of Will Holding Back Cash and Shares - What to Do?

[onyx]

The executor of will is a heavy gambler and is holding back cash and shares. I am the main beneficiary.

He has already taken out $10,000 as his executor's fee, this was not in the will.

I have been told that if I didn't like it, I should sue him. It will be 6 months on 22nd March since my cousin died. The executor has paid out the smaller beneficiaries already and some cash to me but is holding the rest back.

Do I have to wait until the full 12 months is up or can I get this cleared up as quickly as possible?


Thank you.

 

[Sophea]

Hi Onyx,

1/ Non-professional executors (I.e. those who are not lawyers or accountants etc) cannot claim money from the estate for their time and trouble unless they are authorised to do so. It is a breach of their obligations if they do so without the informed consent of the will-maker or beneficiaries, or otherwise can seek authorisation from the Supreme Court.

You can apply to the court for orders compelling the executor to pay the money back. You would have to determine whether the legal fees will be less than $10,000 justifying the action, though. Speak with an estate lawyer about this.

2/ Be patient with your payout. It is unwise of an executor to pay out anything within 6 months of the death of the deceased, as if a provision claim was made on the estate and the assets had already been distributed it could render the executor personally liable. Therefore, it is definitely not unreasonable to wait between 6 to 12 months for distribution of your inheritance.

After 12 months, however, it is generally expected that (provided there are no impediments or complications with the estate), legacies should be paid and after 12 months, interest is payable on all legacies. So make sure that anything paid after 12 months has interest paid with it.

 

[onyx]

Hi Sophea,

Thank you for answering so quickly and so clearly. My main worry is that the Executor has a gambling addiction and a hearing problem and is a heavy drinker. Can the next of kin (written in the will ) take over the rest of the work needing to be done without having to go through the courts.?

The executor is also threatening for money himself I do not have the stamina to go through more stress, it has been going on too long and the family law solicitor has been terminated by Executor. I am under gambling counselling myself to help me cope with the Executor (ex-husband).

Thank you.

 

[Sophea]

Unfortunately, you cannot remove or replace an executor or obtain orders to compel them to refrain from certain conduct without the court's approval. Therefore unless you are willing to go to court you are at his mercy. I would speak with an estate lawyer about your options.

If he is taking money from the estate that he is not entitled to (i.e. commission - where there is no commissions clause, or taking money that is not bequeathed to him) then he is in breach of his position of trust as an executor to the beneficiaries and is liable to account for any loss they suffer.

 

[onyx]

Hi Sophea,

Thank you for making everything so clear for me.

Regards

 

[Jim C]

Sophea, an executor can't unjustifiably delay distribution, correct?

I would consider waiting 6 months to distribute justifiable on the basis that the executor could be held liable for any claims.

But if no notice of a family provision claim had been received, surely any intentional delay by the executor after 6 months would be unjustifiably delaying distribution?

 

[onyx]

Thank you Sophea,

Apart from the $10,000 he has taken there is another $70,000 that he is going to transfer to his own account in 2 weeks.

Surely something can be done to stop him before he does it or do I just wait and then apply to the Supreme Court?.

Regards