Over the years, we have seen a rise in the number of executors of estates who are not also beneficiaries. Being an executor is a difficult job and a job that isn’t for everyone. If you are an executor of a simple estate, great. If you are an executor but also a beneficiary of an estate and there is no conflict, great.
However, if you are an executor of an estate and the beneficiaries start rumbling about their inheritance and you suddenly get thrown into legal proceedings – this can be extremely daunting.
Executor’s role in a disputed estate
It is important that if you are an executor of a disputed estate (and not a beneficiary) that you remain extremely neutral. It is not your responsibility to tip over to one side or the other. There are many instances when the executor may have a good relationship with one of the beneficiaries and not the other and therefore it is extremely important to not play favourites.
Your role as an executor in a disputed estate is to not mediate and to not intermeddle. Generally, the beneficiaries will have their own legal representation, and it is between them and their lawyers to negotiate and settle their dispute. It is important to not get dragged into any disputes between the beneficiaries. Your role in a disputed estate is simply to make sure that the estate is preserved, legal costs are kept down on your behalf and that all the assets have been accounted for. You as an executor do not want to get involved as this will accrue unnecessary legal costs.
As the executor, you are simply providing the lawyers and the Court with any necessary documents such as the Will, what assets & liabilities are in the estate, what have happened to those assets & liabilities and what the net value of the estate is. Once the beneficiaries have settled their dispute then your role is to abide by any agreement reached or the court order made and then distribute the estate as per the agreement or order.
What if I am an executor but also a beneficiary?
If you are acting in the role of both an executor and a beneficiary and one of the other beneficiaries contest the estate, then your role is to wear two hats – one as the executor and one as the beneficiary.
As the executor, you need to make sure that you are administering the estate as efficiently as possible but also preserving the assets while remaining neutral in your role. You have what is known as fiduciary duty to protect the estate assets and each beneficiaries entitlement without favour. However, on the other hand you are also the beneficiary in which you want to protect your share of the estate.
This can become difficult to juggle and one that will in most scenarios require legal advice on how to navigate.
The dispute has gone to mediation
If the beneficiaries have been unbale to reach an agreement and the dispute has now gone to mediation – not to worry. We have seen our clients over the years panic in instances like this as they don’t know what to expect.
If the dispute has gone to mediation, it has nothing to do with your role as an executor and it is merely because the beneficiaries haven’t come to an agreement. Your role still stands the same whereby you are to administer and preserve the estate as much as possible but to also provide all the parties with the most current statement of assets and liabilities. The beneficiaries will fight over what they want but you as the executor just take a step back and wait for them to resolve it – in some instances, you don’t even have to attend the mediation.
If you find yourself caught up in a disputed estate that you’re an executor of, get in touch with one of our senior lawyers today. It is important to always keep a neutral position, don’t panic and get legal advice for some peace of mind.
About the Authors: This article has been co-authored by Ida D’Alonzo and Steven Brown. Ida obtained her Bachelor of Laws at Murdoch University in 2020, after graduating with a Bachelor of Criminology. Ida was admitted as a lawyer in 2022 and has worked in the Wills and Estates area since starting her career. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.
