Getting an executor to do the right thing
As trustees, executors owe many duties. These trust duties are owed to the beneficiaries of the estate. They are enforced by the Courts.
Obligations v. Rights.
Strictly speaking beneficiaries do not really have ‘rights’.
What beneficiaries have is the ability to force the executor to honour the executor’s duties.
Beneficiaries do NOT have a right to do anything of the things that the executor is obliged to do. For instance, beneficiaries do not have the right to:
- probate the estate;
- get private information from third parties;
- collect or take assets;
- administer the estate;
- file tax returns; or,
- select or hire professional advisors for the estate.
The executor must administer the estate
Executors are obligated to administer the estate in a timely manner in accordance with the law.
They are not entitled to do nothing for extended periods of time. They must act, or they must renounce (this is a common complaint that we handle often).
Executors are not entitled to depart from the law or unfairly favour themselves or any other beneficiaries.
Beneficiaries are entitled to a proper accounting of the estate.
The executor must provide proper accounting, in Court format, to beneficiaries in a timely manner.
Note, however, that as a general rule the executor is not obliged to a) provide on-going reporting to beneficiaries, or b) back up documentation (as in photocopies of expenses etc.). It is unreasonable to expect accounting during the first months of the estate, and the executor is not obliged to consult with beneficiaries about every decision, nor provide them with back up documentation on an on-going basis.
How to force an executor to perform
Ultimately, the only way to force an executor to perform properly is to go to Court. There is no other way to force an executor to do or not do anything – only a judge can dictate to an executor.
Often, executors have failed to do something, such as:
- failed to ever apply for probate;
- failed to sell real estate (the house of the deceased);
- failed to distribute the estate to the beneficiaries; and
- failed to account to the beneficiaries.
No amount of letter-writing, screaming, or complaining will force the executor to act.
However, for an experienced lawyer, it is relatively straightforward to commence proceedings on behalf of beneficiaries to force the executor to act and fulfill their duties. These proceedings do not have to be slow, expensive or complex (although much depends on how the executor responds). In the majority of cases, executors suddenly become much more active when they are confronted with a reasonable Court proceedings by the beneficiaries to enforce their rights.
We are experienced at forcing executors to do the right thing. If you are facing difficulties with an executor, please contact us for a free initial consultation.
