A short guide to suing an executor
What is an executor?
An executor is the person who is named in the Will, and is responsible for administering the deceased’s estate. An executor has unlimited personal liability, which means they can be held liable for any financial loss that occurs as a result of an error or an intentional failure to comply with their duties. An executor becomes potentially liable as soon as they take up the role.
What responsibilities does an executor have?
An executor’s main responsibilities include:
- Collecting in the deceased’s assets;
- Preparing the estate accounts which detail the assets and liabilities;
- Paying any outstanding debts/ taxes; and
- Distributing the estate in accordance with the Will
What can an executor be liable for?
Common claims against executors include:
- Breach of Fiduciary Duty: Executors are legally required to act in the best interest of the estate and the beneficiaries. This includes strict detailing of estate assets and liabilities, as well as avoiding conflicts of interests. If an executor misuses estate assets, fails to keep accurate records, or acts in their own interest, they may be in breach of their fiduciary duty.
- Mismanagement of Estate Assets: This includes selling assets at undervalued prices, failing to collect any debts owed to the estate, or allowing a property to deteriorate. Any of these actions can cause harm to the estate and impact a beneficiary’s entitlement under the Will.
- Failing to Distribute Assets: If an executor fails to distribute an asset, or there is an unnecessary delay in the distribution of assets.
- Fraud or Theft: If an executor steals from the estate or uses the estate in committing the fraud, they will be liable.
A party could also apply to the court to have an executor removed from their role and for a new executor to be appointed in their place to administer the estate.
How long do you have to sue an executor?
A claim against the executor may be brought for up to 12 years after the deceased’s death has been registered. However, as with most legal claims, it is advisable not to delay. So, if an executor’s conduct is prejudicing an estate then you should seek immediate legal guidance.