Great news! You have just learned that a relative you never even knew of named you as a beneficiary in his Will. Unfortunately, that is all you have been told. You do not know how much you stand to receive, or when you will get it. Come to think of it, you’re not even sure if you have the right to know. Keep reading to find out.
The executor’s role
To begin with, it is important to understand the executor’s role and his or her legal obligations to you.
Basically, the executor is acting in a fiduciary capacity. This simply means that as the person authorised to administer the estate, he or she holds a position of trust. It also means that he or she must carry out any relevant duties with due care and loyalty. In particular, it means he or she must do so with due care and loyalty to you.
In Queensland (like other States of Australia) the executor’s role is confined to the following:
Section 52 of the Succession Act 1981 (Qld) sets out the main statutory duties and obligations for executors in Queensland. Put simply, executors are required to do the following:
- Collect and attend to the deceased’s real and personal estate, including administering it in accordance with the law;
- Provide a full inventory of the estate and render an account of their administration of the estate when required by the court;
- Deliver up the Grant of Probate or the Letters of Administration, when required by the court;
- Distribute the deceased’s estate, subject to the administration of the estate, as soon as practical; and
- Pay interest on any general legacies in the Will (at a rate of 8 per cent per annum).
In circumstances where there is more than one executor, it is required that they exercise their powers jointly. Practically speaking, this means that the executors need to make decisions together as opposed to unilaterally. In Queensland, again like other legislation, the specific requirements are set out here Succession Act 1981 (Qld).
What constitutes due care and loyalty?
First and foremost, the executor must carry out the wishes as expressed in the Will.
Secondly, he or she is legally obligated to act in the best interests of the estate and all the beneficiaries. He or she is prohibited from acting, in his or her own interests if they are different from those of the estate and the beneficiaries.
Ideally, multiple executors will consult with each other and come to an agreement on the management of the estate and distribution of assets.
Executors should also keep complete and accurate records of the estate management and distributions. Additionally, they should give a synopsis of relevant financial transactions for the estate to you and any other beneficiaries.
In the event of a conflict, the executor(s) cannot side with you or any other beneficiary.
Your legal rights to certain information
As a beneficiary, you have the right to learn about your entitlement under the Will as soon as possible. If this does not happen, you are legally permitted to access pertinent information. For one thing, the executor — or anyone else authorised to administer an estate in New South Wales or Queensland — must give you a copy of the Will if you request one.
Once you get a copy, you can usually identify your interest in the estate. This is important because your right to additional information is often based on what type of interest you have in the Will.
Keep in mind, however, that identifying what type of interest you have in the estate is not always easy. Legally it is one thing if you have an interest in a specific asset (such as a vacation home, a vehicle or a bank account). It is another thing altogether if you have a residual or remainder interest in the estate. Be sure to consult a qualified lawyer if you are confused or unsure about your interest in the estate, or how to determine what it is.
Section 33Z of the Succession Act (Qld) 1981 states that the person who holds either the original or a copy of the will must allow:
- any beneficiary of a will or other person mentioned in the will or any previous will of the deceased
- a spouse, parent or child of the deceased,
- any person (or their guardian) who would be entitled to an inheritance under the laws of intestacy, or
- a creditor who has a claim against the estate,
to inspect the will or obtain a certified copy of it.
Importantly, a will can be complex. If it is unclear or difficult for you to understand seek legal advice from our team of Wills & Estate Lawyers. We have Wills & Estates Lawyers in every state of Australia.
Which information are you allowed to request?
Let’s say your long lost relative left you his vacation house in Tahiti. As a beneficiary, you are allowed to ask for any and all information specifically pertaining to the home. For example, you can request any information pertaining to past or current financing, maintenance, insurance, utilities and so forth. However, barring special circumstances, you cannot request information pertaining to any other assets not left to you.
Now let’s say the same relative left you a portion of the balance of the estate. This is also known as the residue or residual or remainder interest in the estate. In this case, you are allowed to have information about all of the assets. You also have the right to access information about the management and administration of the estate. Furthermore, you have the right to seek court intervention if any such information is not provided.
Your right to assets
Now, this may seem counter-intuitive, but as a beneficiary, you do not technically have any rights to the assets in the estate. This is so even when certain assets have been left to you. Instead, you are entitled to the “due administration of the estate.” This means you can demand that the executor carry out the administration of the estate in a prompt and proper manner.
Legal action against executors
The role of an executor is vitally important to the proper administration of an estate. Consequently, executors who do not treat this position with sufficient respect and neglect to perform their statutory duties can be held liable.
Again using the Queensland example, Section 52(2) of the Succession Act 1981 (Qld) allows a person who is aggrieved by the executor’s neglect (such as a beneficiary) to make an application to the court for their intervention. In doing so, the court will consider the full circumstances of the matter and make any orders that it sees fit. For example, the court may order that the executor to pay interest on any sums of money which they have negligently handled, and potentially a further order that they pay the legal fees of the person who brought the application to the court.
In the event that an executor wastes property or transfers property to their own estate and later dies, those assets are claimable under section 52A of the Succession Act 1981 (Qld).
Not adequately provided for under the Will?
In the event that you believe that you have not been adequately provided for according to the Will you can challenge it on the basis that it fell short for your proper “maintenance and support”.
Judicial opinion has explained “adequate and proper” in this context:
‘Adequate’ and ‘proper ’in particular must be considered as words which must always be relative. The ‘proper’ maintenance and support of a [person] claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to [their] needs but also [their] own capacity and resources for meeting them.
Pontifical Society for the Propagation of the Faith v Scales.
Accordingly, if you believe you were not sufficiently provided for, you will need to demonstrate this to the Court by producing evidence as to your personal income, assets, liabilities and expenditure, as well as any medical, educational and lifestyle needs that you may require into the future.
Conversely, an opinion may be sought to counterbalance such a claim if it is the case that the person who made the Will were apprehensive in giving more because of the beneficiary’s behaviour, which may include things like, serious criminal behaviour, estrangement due to the claimant’s own conduct, and drug or alcohol abuse.
If you believe you have not been adequately provided for under the Will, seek very prompt legal advice as strict time limits apply in making an application. If you need help, our Estate Litigation lawyers across Australia can help you.
How much does it cost to dispute a Will?
Regardless of which state of Australia you’re in, there is relevant legislation that allows you as a beneficiary to dispute a Will.
The cost of disputing a Will is usually funded through the state and lawyers who do this type of work may act for you on a No Win No Fee basis.
At Law By Dan, if you need help in this respect, regardless of where you live in Australia, you can request a free, no-obligation consultation with one of our Estate Litigation Lawyers.
How long will it take for me to receive a distribution from the estate?
In Queensland, like most states of Australia, distributions usually take longer than 6 months to be disbursed from the estate. The delay is because it is necessary to allow the time limit for notice of any potential family provision applications (claims by people wishing to dispute the Will or contest the estate). That said, in practice, the far majority of estates are administered within 12 months. If the period of time is longer, it is usually because of one of the following reasons:
- the estate is tangled in litigation (family provision claims like a will dispute or contest of the estate); and
- the estate has assets that are more difficult to sell (business, complicated assets)
If you are in a circumstance where these things do not apply, yet the estate has not been disbursed within a 12 month period, you as a beneficiary should seek legal advice from Law By Dan promptly.
A few other things to keep in mind
Finally, as a beneficiary, you also have the rights to the following:
- To be notified of the expected date of distribution and any potential delay and the reason for any such delay;
- To receive any legacy within one year (12 months) after the deceased’s death, and to receive any applicable interest on such a legacy if payment is not made within that time; and
- To be notified about any legal action against the estate that could potentially affect your entitlement(s).
