Beneficiary vs Executor Disputes (Problems with Executors)
Helping Families Resolve Difficult Estate Issues With Dignity
Addressing Executor and Beneficiary Disputes
When a loved one passes, it should be a time for grief and remembrance, not litigation and arguments. But, if Beneficiary vs Executor disputes arise … families can find themselves in conflict, the deceased’s wishes may be put at risk, and expensive and upsetting legal battles can ensue.
At Falzon Legal, we strive for calmness and concord during Will disputes. Whether you’re a beneficiary searching for fairness, or an Executor/Trustee needing to justify your actions, we are by your side. With compassion and understanding, we help you find agreeable and peaceful resolutions … without damaging the ties that bind.
Trustee and Executor Duties in NSW
While covering differing legal roles, and having distinct primary duties, Executors and Trustees also share many similar responsibilities.
So, what does an Executor of a Will do? Executors tackle the allocation and winding up of the estate as outlined in the Will. Trustees look after assets held in a Testamentary Trust, over a longer period, usually for the benefit of the same beneficiaries as the Will.
Most importantly, both roles are fiduciary … this means that they must act honestly and in the best interests of the beneficiaries.
Specific Duties of Executors and Trustees
| Executor Primary Role | Trustee Primary Role | |
|---|---|---|
| Focus | Gathering together the deceased’s estate, paying debts, and distributing assets. | Managing assets held in a Testamentary Trust, usually outlined in the Will, over an extended period. |
| Primary Task | Finding the Will, making an application for Probate, paying taxes, and defending the estate against claims. | Managing and investing trust funds, making payments to beneficiaries, and keeping accurate accounts. |
| Legal Foundation | Succession Act (2006) and the Probate and Administration Act (1898) | Trustee Act 1925 (NSW) and/or the terms of the will, such as a Testamentary Trust Will |
General Shared Trustee and Executor of a Will Responsibilities
- Act in the best interests of the beneficiaries.
- Defend assets … both of the estate or the Trust.
- Manage funds correctly and diligently.
- Provide accurate and prompt information where required.
- Following Will or Trust instructions faithfully and truthfully.
- Act impartially towards all individual beneficiaries.
- Avoid conflicts of interest.
- Keep accurate accounts and records.
- Avoid premature distribution of assets.
Why These Duties Are Crucial
These duties are the foundations on which confidence and trust are maintained between Executors & Trustees and the beneficiaries. If they aren’t stuck to, or beneficiaries feel that they aren’t diligently followed, disputes can start.
At Falzon Legal, our expert team helps Trustees and Executors understand their requirements, avoid mistakes, and complete their roles confidently. Furthermore, we can provide assistance for beneficiaries concerned about mismanagement of estate funds and failures in duty … and holding the responsible person to account.
Need Clarification on Executor and Trustee Duties?
Common Trustee/Executor vs Beneficiaries Disputes
Typical Dispute Areas
Failure in Trustees/Executors Transparency Obligations to Beneficiaries
If beneficiaries lack clarity or are kept in the dark by the fiduciary, this can lead them to think there could be evidence of Trustee or Executor misconduct in NSW. For example, this could include holding back information, no progress updates, or a lack of accounts.
Delays and Lack of Progress
If an Executor is failing to distribute an estate promptly or apply for Probate in a timely fashion … or a Trustee is delaying the required distributions … this can often be a red flag that they are not fulfilling their rightful obligations. This could be due to basic incompetence or more serious avoidance or conflict reasons.
Mismanagement of Estate Funds
Should the Executor or Trustee do something (or fail to do something) that results in the estate value getting smaller, this could be a case of mismanagement. For example, an Executor could sell assets way below their market price, or a Trustee might make numerous poor investment decisions.
Conflict Between Co-Executors/Co-Trustees
If fights and disagreements occur between those who manage the estates and Trusts … this can slow distribution or halt it completely. This might be due to different opinions on procedure and management, or simply a dislike between the fiduciaries.
Trustee or Executor Breaching Fiduciary Duty
Perhaps the most serious ground for dispute … where the Executor or Trustee fails completely in their duty. This could be through acting in their own interest, such as loaning themselves money, or favouring one beneficiary over others due to personal connections.
At Falzon Legal, we can help Executors, beneficiaries, and Trustees. Whether you’re a fiduciary needing to defend your actions and integrity … or a beneficiary needing clarity and fairness … we bring sensitive and compassionate assistance.
Suspecting Failure in Duty or Needing To Defend Your Position?
Supporting Beneficiaries in Suspected Failures of Duty
If you’re a beneficiary and feel or suspect that the actions of an Executor or Trustee aren’t thorough, they are acting wrongly, or not following the instructions in the Will or Trust … you have a legal right to request more information and hold them accountable.
With consideration and empathy, we help you bring fiduciaries to account … without creating further or unnecessary family conflict.
Rights of Beneficiaries of a Will in NSW
- Asking for the Will or Trust Deed – as a beneficiary, you’re entitled to view a copy of the Trust Deed or Will, allowing you to check that the fiduciary is fulfilling their duties.
- Requesting additional information – demanding that the Trustee or Executor provide relevant info, such as accounts, bank statements, investment decisions, or any action they’ve taken.
- Challenging executor decisions – scrutinising choices made, and applying to the court to overrule certain decisions. For example, looking at the sale of a property below its market value or over-the-top and inflated payment of fees or costs.
- Questioning trustee decisions – challenging decisions you think are biased, careless, or wrong. What an Executor/Trustee cannot do is make poor or negligent investments or favour a particular beneficiary.
- Making an Application to Compel Performance – asking for a court order to make the Executor or Trustee complete their duties. E.g. if they are delaying the distribution of the estate or failing to manage Trust property.
- Removal of Executor or Trustee – if there’s serious fraud, misconduct, or incompetence … you can apply to the Supreme Court of New South Wales (NSW) to have an Executor or Trustee removed from their position.
Think an Executor or Trustee Is Failing in Their Obligations?
Supporting Executors and Trustees in Disputes
At Falzon Legal, we are there to provide compassionate support and guidance. Whether you need assistance or explanation of your obligations, or need to defend your activities and behaviour … our expert team is by your side, bringing calmness and professionalism and acting without judgement:
Assistance for Trustees and Executors
- Clarifying your responsibilities – if you’re a Trustee or Executor accused of not doing their job in NSW, we can take you through your duties and check for mistakes … from applying for Probate to Trust administration.
- Reply to Beneficiary requests – if beneficiaries need documentation or questions answering, we can draft clear and legally suitable responses to minimise any misunderstandings and prevent conflict.
- Defending allegations – whether they’re frivolous or without merit, we can defend against accusations of bias, misconduct, delay, or mismanagement.
- Ensuring complete transparency – assisting you in meeting your Trustee and Executor transparency duties with accounts, lodgement, compliance, and beneficiary communication.
- Mediating disagreements between co-fiduciaries – bringing negotiation and agreement if there is more than one Executor or Trustee who have differences of opinion.
- Ensuring legal compliance – making sure you comply with relevant legislation, including the Succession Act 2006 and the Trustee Act 1925 … avoiding accidental duty breaches.
- Reducing personal risk – advising on matters where mistakes could lead to personal liability, protecting you, your family, your home, and your assets.
- Navigating difficult decisions – whether it’s a Will dispute, Family provision Claim, or Trust compliance, we give legal advice tailored to bring fairness and legal clarity.
- Stopping a beneficiary harassing the Executor – addressing hostile communications by advising beneficiaries on appropriate conduct, and where necessary, using court orders to prevent such actions.
Our Approach to Solving Disputes – Mediation First
At Falzon Legal, we strongly believe families and relationships come first.
If you’re thinking about challenging the executor of a Will, questioning the actions of a Trustee, or finding your actions scrutinised in either of these positions … our first action as your legal representative isn’t to start confrontational court action.
Instead, we talk.
Mediation
Happily, the majority of disputes between Executors, Trustees, and beneficiaries are sorted outside of the court process. Through negotiation and mediation, all parties can openly discuss problematic areas … allowing them to reach an agreement that prevents further conflict and family fallouts.
Litigation
If mediation fails, court action may be necessary. Advocating in the best interests of you and the estate, we provide understanding yet professional representation … whether we are defending your actions as a fiduciary, or challenging the conduct of a Trustee or Executor.
Falzon Legal – Finding Agreement and Harmony With Compassion
At Falzon Legal, we know that these frictions can be both necessary and unwelcome at the same time. With ceaseless empathy and consideration, we help to protect the estate, respect the deceased’s wishes, and find agreeable solutions that preserve family relationships.
We’ll help you bring peace to the confusion, and confidence in the way ahead.
Trustee, Executor, and Beneficiary Disputes FAQs
How To Remove an Executor From a Will
If you feel it’s necessary to relieve an Executor of their duties … you need to apply to the Supreme Court of NSW. This court will only act if it believes that the Executor is severely delaying the administration of the estate, acting dishonestly, or is in any way unfit to act.
Usually, the responsibility lies with you to prove that there is evidence of misconduct, incapacity, or conflicts of interest. Always speak to an expert Wills and Estates Lawyer, such as Falzon Legal, before taking any action.
What Happens if Trustees Disagree?
When Trustees have differences of opinion, it can lead to delays in the management of the Trust and its distributions to beneficiaries. Since Trustees must agree in their actions … unless the Trust Deed states otherwise … concord is crucial.
If matters can’t be solved in-house, then a beneficiary or one of the Trustees can make an application to the Supreme Court. They may:
- Give directions – issuing guidance on ways to proceed to break the impasse.
- Ordering action – telling the Trustees to do something specific, such as selling an asset.
- Remove a Trustee – if the disagreement can’t be resolved, is hostile, or is damaging the Trust … the Court could remove one (or more) Trustees.
Who Is Usually the Executor of a Will?
The Executor is the person chosen and named by the Will-maker in their Will. Typically, this person is picked by the Testator due to their closeness to them, and/or because they trust them implicitly. It can be anyone over 18 years of age, and is often a close relative or professional, such as an accountant or solicitor.
Is There a Difference Between Executor and Trustee Disputes?
Yes! Generally speaking, Executor disagreements are usually short-term related … occurring when beneficiaries of a Will question the allocation and winding up of the estate’s assets.
Trustee disputes can last for many years, as they can be in response to the ongoing management of Trust assets and their distribution.
Can You Resign as a Trustee?
Indeed you can! A Trustee is allowed to resign, but there are strict legal procedures that they must follow. This can include providing notice, appointing a replacement (if required by the Trust Deed) and transferring assets in the Trust.
Can an Executor Override a Beneficiary?
If an Executor of a Will refuses to pay a beneficiary, they are acting improperly. It is not up to them to choose who gets what. They can, however, decide how to administer the estate … such as selling an asset if it’s necessary to pay debts.
Can an Executor Remove a Beneficiary From a Will?
No! This would be Executor fraud. Even if the Executor believes there is an invalid Will, they cannot adjust it as they see fit. Only the deceased person had the power to decide who receives an inheritance.
Can an Executor of a Will Change the Will
Definitely not. An Executor must not alter the Will, their role is to administer the estate as outlined by the deceased. Only through a successful contest in the Supreme Court can distribution be altered.
How To Change Executor of a Will After Death?
Firstly, an Executor can formally step aside and let the substitute named in the Will take over. Alternatively, you can apply to the Supreme Court to remove an Executor if you think there is excessive delays or misconduct.
Can the Executor of a Will Also Be a Beneficiary?
Yes. Since the Executor is often a close relative, it’s usual for them to also be a beneficiary. However, the Executor must not show any bias or favouritism towards themselves.
How Long Does It Take To Remove an Executor
This depends on if the Executor is happy to step aside, or they defend their position. If they agree to give up their role, it can take as little as 3-6 months. If they fight the application in court, it could take one to two years to sort out.
What Happens if an Executor Lies?
If an Executor speaks untruths to the Court or to beneficiaries, this is a breach of their duties. It can result in removal, criminal action if there is fraud, and possibly personal liability for any losses incurred due to the falsehoods.
Can an Executor Appoint Another Executor?
No, not without the permission of the Supreme Court. However, they can delegate complicated jobs to others, such as solicitors or accountants.
Is Executor the Same As Power of Attorney?
No, they are completely different.
Power of Attorney gives a third party the permission to act on behalf of a person who is alive … often in matters such as finance and property … and ceases when the person dies. An Executor is given the role of administering a deceased person’s estate when they pass.
Can a Sole Beneficiary Be an Executor of a Will?
Yes. Whether the Executor is a sole beneficiary, or one of many beneficiaries, they are allowed to hold the fiduciary position and receive an inheritance.
What Does an Executor Do After Probate Is Granted?
A Grant of Probate states that the Will is valid, and gives the Executor legal authority to act. The Executor may then collect the assets together, address outstanding debts, and then distribute the remainder to the beneficiaries stated in the Will.
What Expenses Can the Executor of a Will Claim?
The Executor can claim money for any reasonable costs that they have to pay due to administering the estate.
Administrator vs Executor of Estate – What’s the Difference?
Both parties gather together the estate’s assets and then distribute them to beneficiaries. The difference is where their authority comes from. An Executor is named in the Will. An Administrator is appointed by the court … usually when the Executor cannot fulfil their duties or there is no Will.
Who Is the Executor of an Estate Without a Will?
If someone dies intestate, i.e., without a Will, an Administrator is appointed (often the next of kin) to distribute the estate in line with the rules of intestacy.
Can an Executor Decide Who Gets What Without a Will?
If a Will doesn’t exist … then there is no Executor. Instead, the court appoints an Administrator to distribute the estate according to the intestacy statutory rules.
Can There Be Two Executors of a Will?
Yes! A Will can name more than one person to administer the estate. They act together to make decisions, sharing the load.
Can a Will Be Changed Without the Executor Knowing?
Yes. The Will is the wishes of the Testator (the Will-writer). The decisions they make, who gets what, and how much is distributed is up to them. They have no duty to inform the named Executor.
What Happens if Your Executor Dies?
Make sure your Executor has their own Will up to date! Their Executor would become your Executor. If they don’t have a Will, then another person will have to apply for Letters of Administration on their behalf.
If the new Executor or Administrator does not wish to continue as Executor or Administrator for your estate, then the NSW Public Trustee will carry out the role, subject to their usual fees or charges.