An executor is a trusted person appointed in a Will to manage the Estate. Executors are responsible for taking care of the estate and distributing the assets of a deceased person in accordance with the Will.  Anyone over the age of 18 can be appointed an executor and they do not require any professional qualifications.

If someone dies without a valid Will, there will be no executor. An eligible person, such as a spouse or family member, can apply to the court to be appointed the administrator of the estate. The administrator largely has the same responsibilities as the executor.

Executors and administrators are required to administer the estate of the deceased. In most circumstances, either a Grant of Probate (where there is a Will) or Letters of Administration (where there is no Will) will need to be obtained from the Court in the jurisdiction where the deceased resided, before the Executor or Administrator can deal with the assets. Once the Grant is made by the Court, the Executor or Administrator must collect the assets of the deceased, pay liabilities of the estate, respond to any litigation on behalf of the Estate, and ultimate distribute assets to the beneficiaries. At the same time, they are responsible for maintaining thorough records and accounts.

Executors and administrators have an important and onerous role. They have a duty to act in the best interests of the estate. If someone has been appointed executor in a Will and does not wish to act, they can choose to renounce their appointment from the role.

A recent Supreme Court decision in Re Estate of the Late Gerard Anthony Harberl (also known as Gary Anthony Harberl) [2022] NSWSC 704 the Court illustrated what happens when an executor/administrator does not act in the best interests of the deceased estate. In this case, the deceased left no valid Will. The deceased’s siblings took care of the deceased’s affairs after his death before the deceased’s ex-wife, Andrea, was granted administration of the estate by the court.

Under intestacy laws, Andrea and the deceased’s minor daughter were entitled to the proceeds of the whole estate. Andrea was successful in court proceedings to have the net value of the estate transferred to herself, to be used for the benefit of the minor daughter. However, instead of using it for the daughter, Andrea used the money to buy a new car, paid for her own personal legal proceedings and proposed to buy land and construct a new house for herself and her children to live in.

Andrea also began separate and vindictive proceedings against the deceased’s siblings to recoup some money they had spent from the estate after the deceased’s death, for example, the purchase of a tombstone.  Andrea was unsuccessful in this claim.

The Court was concerned by the vindictive and frivolous nature of the proceedings and so began enquiries into Andrea’s role as administrator of the estate. They discovered her unauthorised spending from estate monies as well as other activities which were not aligned with the best interests of the estate.

The court decided to remove Andrea as administrator. The court found that she had failed to act in the best interests of the estate in a number of ways, including:

  • She had seriously misappropriated the estate funds and failed to understand the distinction between money for her daughter’s interests and money for her own interests;
  • She had failed to appoint an independent trustee for the estate. Instead, she had appointed her brother as trustee so that she was able to deprive the estate of its funds; and
  • She had pursued vindictive litigation which had cost significantly more than it would have recouped had the litigation been successful.

If you require assistance with acting as an Executor or Administrator of an Estate, or if you are a beneficiary of an Estate and have concerns about how the Executor or Administrator is dealing with the assets, you should seek legal advice.

Our team of qualified estate lawyers at Chamberlains Law Firm can assist you with these issues to ensure that the Estate is managed correctly.