The Top Five Signs to Suggest that Something is Going Wrong with the Administration of an Estate
By far the most-often asked question about the estate of a loved one is what you, as a beneficiary, can expect from the executor. There is a misconception that as a beneficiary you have no control and cannot do anything. This is all too often fuelled by the executor who erroneously believes that the role of the executor entitles him to do as he pleases. In fact, the role of executor brings with it duties and responsibilities to the beneficiaries, which if ignored can result in personal liability.
The following are perhaps the most common signs that something may be going wrong and that the administration may require further investigation:
If you do not hear anything but know, or believe, you are a beneficiary under the terms of a will, this should arouse suspicion. There may be good reason for the delay, but you are entitled to ask and receive an explanation. If none is forthcoming or there is a significant delay between the date of death and hearing anything from the executor, this is likely to give rise to a cause for concern.
Refusal to tell you what is in the estate
If you are a residuary beneficiary entitled to a share of the residue of an estate (i.e. a share of the balance remaining following payment of debts, tax and any specific gifts), you can ask for an interim estate account to show you what is in the estate. In general, the executor should be able to provide you with an account at any time, on request, within a reasonable time frame. By that I mean within a few days. He or she should be maintaining a constant record of what is coming in or out of the estate. If you ask for this, it should be provided on request.
Executor is purchasing the property from the estate
An executor is not able to gain personal benefit from his role as an executor. If the executor is purchasing the house from the estate, it means he needs to provide complete transparency and obtain various market appraisals/valuations to show that the deal has been done at arm’s length and that he has not gained any advantage. Any step taken by the executor to purchase an estate asset needs to be handled with extreme care and is an obvious time when transparency should be at its greatest.
The executor is repaying “debts” owed to him
Again, this can arouse suspicion. Unless there is evidence of an agreement between the deceased and the executor made before the date of death, how do you know that it was the deceased’s intention to repay these sums? This can be a back-door way for the executor to take more than his or her fair share of the estate and again, demands complete transparency by the executor to alleviate any concerns.
The executor is carrying out improvements or work to the property before sale
Sometimes it can be good for the estate to maximise the potential of a property. However, this should only be undertaken with the agreement of the residuary beneficiaries. What if the cost of the works is not recovered within the sale price or during the time taken to carry out the work there is a fall in property prices and the eventual sale price is substantially less than anticipated? The executor is, in these circumstances, at risk and could be liable to the beneficiaries for their loss.
The above five points are questions that the contentious probate team are asked to answer on a daily basis. It is surprising how many people feel that the executor has unquestionable control, including the executors themselves. The role of the executor is not a role which allows you to make far-reaching decisions. It is really an administrative role requiring the executor to gather in the assets and distribute them strictly in accordance with the will. The decisions the executor makes in undertaking that role can render him liable to the beneficiaries for any loss. Obviously, some estates are very complex and require the executor to make important decisions to protect the estate assets, but when such action is required it is important that the beneficiaries are, so far as possible, advised of their intentions or alternatively, a protective order should be obtained from the Court.
What can you do?
Executors can be removed. If you feel that the executor is guilty of any of the above, speak to our contentious probate team. We answer these questions daily and can provide guidance on how to find out what is happening and, if necessary, advice and assistance on how to remove a rogue executor!
Partner – Contentious Probate