BENEFICIARY PROTECTION
Did you know that as a beneficiary you have certain rights when it comes to your loved one’s estate?
It is important to know what your rights are so you can ask the right questions and be informed throughout the whole process.
WHAT IS A BENEFICIARY?
A beneficiary is a person or an entity who receives an entitlement out of a deceased person’s estate. That entitlement can be by way of cash, real property, a motor vehicle, animals, shares or personal belongings and/or contents.
WHAT IS AN EXECUTOR?
An executor is a person who has been appointed by the deceased in their will to administer the deceased person’s estate in accordance with their wishes stipulated in their will.
WHAT ARE MY RIGHTS AS A BENEFICIARY?
The entitlement you are receiving from the estate determines the extent of your rights, however, generally, a beneficiary has the rights to:
- Be informed whether the deceased left a valid will and that they are a beneficiary of that will;
- Receive a copy of the deceased person’s will on the request of the beneficiary;
- Be informed as to the extent of the estate, include details of the assets and liabilities* and when they may expect to receive their entitlement;
- Receive reasonable updates throughout the administration of the estate on request including delays as to administering the estate;
- Be advised as to any family provision claims, challenges as to the validity of the deceased’s will or any other legal proceedings commenced against the estate;
- Receive a distribution statement which clearly sets out how the beneficiaries’ entitlement was calculated, including all credits into the estate and debits out of the estate*.
- Receive their entitlement within 12 months from the deceased’s date of death unless there are terms in the will that does not allow this.
- Receive the estate accounts on the beneficiary’s request*.
*Where a beneficiary is receiving a specific legacy i.e a specific sum of money or item from the estate, they are typically not entitled to such details as to the estate so long as they receive their correct entitlement.
WILL THERE BE A READING OF THE WILL?
In New South Wales, there is no official reading of the will nor is there a requirement under the Succession Act 2006 (NSW) to do so.
The executor should inform you that you are a beneficiary of the will, but if they do not, you are best to ask for a copy of the will as soon as possible.
WHAT IF I HAVEN'T RECEIVED MY CORRECT ENTITLEMENT UNDER THE WILL?
A beneficiary is entitled to request the executor to file and pass their accounts with the Supreme Court of New South Wales.
This can be a long and costly exercise for the estate and does not necessarily involve a determination as to whether a beneficiary has received the correct entitlement, but it can help resolve any issues there may be when it comes to calculating their entitlement.
CAN I STILL CONTEST THE WILL IF I AM A BENEFICIARY?
There are certain circumstances where a beneficiary may be left without adequate provision in the will of a deceased person. In these circumstances, a beneficiary, who meets the eligibility threshold, can make a claim for further provision out of the estate of the deceased person.
To find out more head to our Family Provisions page.
CAN A BENEFICIARY ARRANGE THE DECEASED'S FUNERAL?
It is the role of the executor to arrange and manage the disposal of the deceased’s body including the deceased’s funeral. A beneficiary has no legal right when it comes to the deceased’s funeral unless agreed to by the executor.
WHAT IF THE EXECUTOR IS NOT ADMINISTERING THE ESTATE CORRECTLY AND NOT ACTING IN THE ESTATE'S BEST INTEREST?
An executor must administer the estate in accordance with the deceased’s last wishes and the law.
If an executor is not administering the estate in the best interest of the estate or the beneficiaries, there are circumstances where an executor can be removed as executor. Some examples of this are where an executor is causing undue delay and/or there is a conflict of interest which is affecting them administering the estate.
Removing an executor once Probate is granted can be complex and involves a determination by a judge through Supreme Court proceedings.
ARE MY COSTS PAID OUT OF THE ESTATE IF I NEED TO HIRE A SOLICITOR?
Generally, a beneficiary is required to pay for his or her own legal costs. Only a judge can order costs be paid out of an estate and that is only when Supreme Court proceedings are commenced.
We act for many beneficiaries on the basis that we are paid on the receipt of their entitlement from the estate.
If you are a beneficiary that is being kept in the dark or have tried to seek reasonable updates from the estate’s executor without any luck, contact August and Claire Lawyers today for an obligation free discussion on how we can assist you.