It’s never easy to lose a loved one, and it can be even more challenging when one’s testament isn’t carried out properly. Estate litigation can be upsetting, but in some cases, necessary.
Knowing the rights and duties of an executor, their responsibilities, and how to contest a will in certain circumstances are all important in deciding if you can or should contest the document.
You don’t need to take this on alone, however. An experienced family or estate lawyer can help you through the process. The following is background information that can help you decide whether or not you have the grounds to make changes to the will or arrangements at hand.
Duties of an estate executor
An executor is in charge of carrying out the terms of a will, the document that states what should be done with one’s assets after death. They are chosen and named in the will by the person whose will it is.
If an executor is not named in the will, the court may appoint someone. In either case, the person would need to be approved in probate court in the state where the deceased lived.
The executor can be anyone, including a family member or beneficiary. However, the responsibilities of an executor can involve a lot of time and effort, and sometimes even complicated situations. For these reasons, many people choose a professional executor, such as a solicitor, to carry out this task.
The typical duties of an executor include making arrangements after death and assessing, arranging and distributing the assets per the terms of the will. Typically, an executor is paid out of the probate estate.
In a new will, for example, the assets of the deceased automatically become the assets of those they are being left to. However, if you are leaving money to your child, but your child is in debt or files for bankruptcy, the creditors will assume the assets. Dissimilarly, in a testamentary trust, there can be conditions of the trust, which vary depending on the purpose, that can provide more protection to the assets. The executor would see that these terms are seen to and honoured.
After a loved one’s death
The typical duties of an executor include finding the will, arranging the death certificate and organising the deceased’s funeral. Additionally, the executor must also pay the deceased’s debts, income tax, duties and funeral expenses with finances sourced from within the estate.
Once these responsibilities have been carried out, the executor is then required to assess the value of the remaining estate and assets (including property), arrange for probate if needed and distribute the assets as the terms of the will dictate. If someone files a contesting wills case or family provisions claim against the estate, the executor would then be required to act as a defence against this action.
However, rather than defend the will, in the case that a family member or trusted friend has been appointed executor in a family arrangement, they can still choose to lodge an inheritance dispute. A claim may be lodged if they believe they have been unfairly provided for in the existing will. To do so, the individual must step down from the role of executor.
Can an executor change the terms of the estate?
The assets being passed down through a will may include investments, property, money, and anything else of value. The executor cannot change the terms of the will or the beneficiaries of the will, unless the will explicitly permits them to do so.
The executor must defend the will maker’s intent
The executor must follow the state’s law, and the executor must defend the estate if there is a dispute. In an estate dispute, the executor has the following responsibilities:
- Challenging the validity of the will based on the testamentary capacity of the testator to make or rewrite a will.
- Contesting that the estate has a moral duty to provide for them, but doesn’t make proper arrangements (or leaves them out completely.)
- Issuing of the deceased estate’s assets.
- Correcting errors made by the executor that negatively impacted a beneficiary.
- Identifying the undue influence of a beneficiary resulting in disenfranchising the will make and/or others named in the will.
Not just anyone can dispute a will or testamentary trust. Among those who have the grounds to do so include:
- Current spouses, domestic partners, ex-spouses or partners.
- A child of the deceased, stepchildren, a grandchild.
- Someone who was a member of the household.
- Someone who lived with and had a close personal relationship with the deceased.
- Someone who contributed to the value of the estate,
- Someone who was given proven promises about an inheritance from the deceased before they died.
Changing an executor
In the scenario where a family member or trusted friend has been appointed executor, and wants to lodge an inheritance dispute, that individual would need to step down and the role of executor needs to change to someone else. There are steps that will take place if an executor steps down.
To renounce the position as executor, the individual hoping to contest the will needs to sign a formal renunciation agreement and file this form with the court. This process should be done as soon as possible, as the application may not be valid if some executor duties have already been carried out.
Once the original executor has renounced their position, the court will generally appoint a major beneficiary in the will to take their place. In some cases, a trustee or an alternative beneficiary can also be named as the administrator of the estate.
There are other circumstances where an executor should be changed, and the executor may not want to step down. A breach of fiduciary duties is a reason to change an executor and can be brought to court.
Gerard Malouf & Partners are your probate lawyers
Even with proper estate planning, family arrangements and wills, there are circumstances where changes need to be made after death. If you’re in a situation where you may need to dispute a will, you may want to review the Guide to Will Disputes created by Gerard Malouf & Partners.
It’s challenging enough to deal with the death of a loved one. Still, if an executor isn’t performing their fiduciary duties or there are errors or complications with issuing assets, you want to be sure that you have experts on your side.
The lawyers at Gerard Malouf & Partners have a history of success with will dispute claims, and can help you through the process. Consider a free, no-obligation consultation with an estate or family lawyer by submitting an enquiry today.