Losing and grieving the loss of a loved one can be difficult. If you are a beneficiary of a Will or the estate, it can also be hard not knowing the process of what happens next, what your rights are, and if the estate is being properly managed by the executor or administrator. As a beneficiary, you have certain rights protected by law.
We have broken it down to make it easier for you to understand what to do as a beneficiary.
The executor/administrator's fiduciary obligation
The executor is the person named in the Will as the person responsible for carrying out the terms of the Will once the Will-maker has died. If there is no Will, the Supreme Court may appoint an administrator instead.
Any executor/administrator holds a fiduciary relationship with the estate’s beneficiaries. This means that the executor/administrator must act in accordance with the Will and the law, ensuring that the estate of the deceased person is administered appropriately and for the benefit of the beneficiaries. The executor/administrator must carry out their responsibilities with care to the beneficiaries. This could include investing estate assets to ensure that the estate value is maximised.
The fiduciary duty requires that the executor acts in a timely manner and in the best interests of the beneficiaries.
Your right to information
An executor has obligations to inform the beneficiaries under the Will of their entitlements. If you are a beneficiary under a Will and you are not adequately informed of your entitlements, the laws in Victoria and NSW grants you specific rights to acquire information about the Will and your entitlements under it.
The Wills Act 1997 (VIC) and the Succession Act 2006 (NSW) states that certain people have a right to obtain a copy of a deceased's Will.
You have the right to be informed about any litigation about the estate that might affect your entitlements.
Your interest in the estate
As a beneficiary, you should promptly be informed of your entitlements in the estate, including what the assets and liabilities of the estate are and what matters affect your distribution.
Once a summary of the estate’s assets and liabilities is reviewed to determine the overall value of the estate, you should be in a position to determine whether you believe adequate provision has been made to you. If you are an eligible claimant and consider that the distribution of the estate does not result in adequate provision being made to you, then you may be able to make a claim for further provision.
The right to the proper administration of the estate
An executor owes a fiduciary duty to you as a beneficiary and needs to act impartially and in the best interests of the beneficiaries. They have a duty to administer and distribute the estate in a timely manner, taking into consideration all relevant facts and issues which may arise.
You also have the right to be informed of the estimated date of distribution of the estate assets that you are entitled to receive, and any potential delays. Generally, specific gifts in a Will should be distributed within 12 months of the date of death of the deceased. If the distribution takes longer than 12 months, interest will be payable on specific gifts under the Will.
You also have a right to information about your interest in the estate.
Your right to estate accounts
Executors are required to maintain a set of estate accounts and provide them to you if you make a request. The estate accounts should show all amounts collected into the estate, details of all payments made from the estate, all assets which have been transferred to beneficiaries, all distributions made from the estate and any assets being held by the executor on behalf of the estate as at the date of the accounts.
How we can help
Contact our expert Wills and Estates Planning Team who can guide you through the entire process. We can advise you as to your entitlements, follow up executors/administrators and speed up progress, identify any discrepancies and issues in the administration, and in case of any litigation, advise you on the best course of action.
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