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WA Executor of Will Not Doing a Good Job

Discussion in 'Wills and Estate Planning Law Forum' started by duddo, 27 October 2014.

  1. duddo

    duddo Member

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    My brother was made executor of a will (mum's will). The only real asset she left was 60% in a housing property. My sister owns 20% and her husband owns 20%. My brother won't answer e-mails or msm's and has said to get in touch with his lawyer for any matters. His lawyer has said he won't give out any information because he isn't working for us. How are we supposed to keep up with whats going on without any feedback. The brother is just trying to make it hard for everyone, as there has been a bit of a rift in the family for years. Can he be requested to give up being an executor and a court executor be appointed, or do we just have to put up with it.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi,

    After someone passes, the solicitor will usually contact the executor and make them aware of their obligations from that point on. The executor has a one-year grace period in which they can postpone selling assets and distributing according to the will. This is to allow the executor to call in property, advertise for unknown creditors, deal with funeral arrangements etc.

    If you believe your brother is not suited for acting as executor, you can challenge his right to a probate (the documentation that allows for management of the estate in accordance with the will) by:

    1. Applying for a caveat on the estate so that your brother does not obtain probate without your knowledge: s 33 of the Non-Contentious Probate Rules (WA) ("NCPR")
    2. Apply for a citation. A citation lists all the people entitled to the grant of probate in order of priority. The court will then ask each person entitled to enter an appearance to accept or refuse the grant. A person who does not enter an appearance is taken as having renounced their entitlement and the next person on the list will be entitled: s 29
    3. During the citation, if your brother does not reject the entitlement, you can ask the court to consider whether or not to force your brother, the executor, to take grant of probate after six months of the deceased dying: s 30(3) (no, you cannot force a grant to be taken earlier than this)
    4. Alternatively, you can apply to the Supreme Court (WA) to "pass over" the executor. This means that you ask the court to appoint someone other than the nominated executor to receive the grant of probate. This is done where the nominated executor is unsuited to be executor for some reason (e.g. bad character, falling out with the deceased or beneficiaries, bankrupt, gambling or drug addict).
     
  3. Sophea

    Sophea Well-Known Member

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    Hi duddo,

    Further to Sarah's comments, as a beneficiary under the will - the executor owes the following obligations to you:
    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 must distribute entitlements to all beneficiaries within 12 months of the deceased's death.
    Knowing this at least, you can assert your rights and ensure that things are being done properly and whether or not you need to bring a court application to replace your brother as executor.
     
  4. winston wolf

    winston wolf Well-Known Member

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    Executors aren't required to do a "good" job, I'm afraid.
    The best you can hope for from many executors is that they don't wast too much and don't steal anything.

    Unless they are using the estate for their own benefit or totally blowing the estate there is little you can do.
    The cost to remove an executor is just not worth it in most cases.

    Keep an eye on them and keep records of every letter, email and phone call in case you need it later.
     

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