As baby boomers are aging and dying, we are on the verge of the greatest handover of wealth in history. Trillions of dollars will be transferred in the next few years, under the terms of various wills.
There has been and will continue to be a significant number of claims made on deceaseds’ estates, challenging the terms of a will. Dealing with claims on estates is often a complicated process. An Executor must give consideration to complex legal issues.
So, if you are appointed an Executor under a will, what are your duties and what are your alternatives if court proceedings are commenced or threatened to be commenced challenging the will?
- Initially, you should be aware that you do not have to take on the role of the Executor even though you are named as an Executor under a will. You can renounce your appointment, in which case another Executor will be appointed.
- The Executor’s role is to defend the terms of the will against any claim.
- The Executor, normally with the consent of beneficiaries, is able to reach a settlement with a claimant. This often comes down to a commercial decision. The Executor must consider the benefit of proceeding with the court proceedings as opposed to settling the claim.
- The Executor must put before the Court, all relevant evidence. This includes evidence that may support or undermine the defending of the will.
When acting as an Executor, where there is a challenge to the terms of the will, it is important to seek legal advice. It must be remembered that an Executor is in the position of a “fiduciary”, bound to act in the beneficiaries’ best interests. An Executor can be personally liable for losses caused by the Executor’s decisions and actions.