Estates and wills can be a tricky part of Australian Law to grapple with. Unfortunately, many people get caught out with some of these very common will and estate administration problems.

 

We have mentioned four major problems that seem to occur often enough in the article below, as well as some tactics for addressing these issues.

 

No Executor Is Appointed In The Will, Or The Executor Refuses The Responsibility

 

Sometimes a will makes no mention of an executor, or the executor named is unable to fulfil their responsibilities. In such cases it is possible for the beneficiaries to apply to the courts to appoint another person or body as the executor of the estate.

 

Usually a person entitled to the residue of the estate may be appointed as an executor, however if there is no one fit to undertake the role, the courts may decide to order the Public Trustee to administer the estate.

 

Joint Executors Cannot Agree

 

Sometimes two joint executors can be in direct conflict over how to distribute the estate they are responsible for. Unfortunately, this can hold up or even halt the process. In such cases one, and only one, of the executors may apply to the court to seek direction as to how to proceed.

 

The courts have the power to remove the a co-executor if they are found to have a conflict of interest, has failed to account to the other executors, is guilty of misconduct or there is a complete communication breakdown.

 

This is very rare, however, as it is in the court’s judgement to honour the wishes of the testator.

 

Beneficiaries Are In Direct Conflict With The Executor

 

The executor has the authority to act on behalf of the testator to distribute their estate, even in the beneficiaries do not agree with their decisions. However, if the executor decides to distribute the estate in a way that contradicts the specifications of the will, they will need to have consent from all beneficiaries.

 

If the beneficiaries suspect the executor of not carrying out the testator’s wishes or involved in any form of misconduct, they may apply to the courts to ask that the executor be removed.

 

Delays In The Distribution Of Assets By Executor

 

According to Australian Law, it is the responsibility of the executor to “distribute the estate within a reasonable time”, and to “inform [the beneficiaries] and provide them with adequate reason if there will be a delay in the distribution.”

 

In general, the executor has up to 12 months after the death of the testator to collect the estate assets, pay off any debts and distribute the inheritance to the beneficiaries. If the executor gives adequate reason, they may be allowed more time to execute these tasks.

 

However, if it is found that the executor is negligent or there is conflict between joint executors, it is possible for the beneficiaries to apply to the courts make direction regarding the administration of the estate. In extreme cases, the executor may be removed.

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