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Five Common Failings of Executors In A Probate Dispute

Posted: Friday, 4 January 2019 @ 13:43

In my experience of being a lawyer and coming across many executor disputes it is worth looking at some of the common failings of executors which include the following:

Lack Of Respect For The Law - Being executor is not some jolly but does actually require thoughtful work and is an actual serious obligation with potential personal liablites. E.g One should comply with the terms of the will or the rules of intestacy, ideally one should distribute the estate within a year after the deceased has died, one should not try to use acting as an executor to benefit oneself/one's family and friends and ensuring that the estate is protected if someone comes out of the woodwork and tries to make a claim. Despite I have seen many executors act in such a poor way. Being an executor requires much more work than is often thought.

Treating The Deceased's Estate Like An ATM - Over time I have realised that occasionally some people who throughout their lives have been law abiding can completely lose it once they become an executor. An executor has to give an oath that they are entitled to probate and promise to do the job properly. The executor's also states how much the estate is worth. Yet I have come across a number of people in all walks of life who just cannot resist forgetting about what is right and just treating the deceased's estate like a pure cash machine. Unsurprisingly this creates problems.

Failing To Handle Beneficiaries Correctly - One of the reasons that probate disputes can develop is often due to a breakdown in communication and misunderstanding and lack of sensitivity. The time around bereavement is stressful and requires a balance between being assertive and compassionate from the executor. If you breach this can create problems.

Tardiness - Too often executors are just too slow in distributing the estate eg taking anything from the super prompt (three months) to those who are still trying to do it thirteen years later. By law there is something called the executor's year and anyone who is later than a year on what is a straightforward estate can get criticised. You should also get on with those that are complicated too. If you do not.this manifest in the judge being more sympathetic to any form of legal application which comes from an opponent of the executor. The solution is for the executor to get good help if it is getting too much.

Lack of Openness - Just by being a bit more open some executors could save themselves so much more trouble. E.g Disclosing evidence such as what is in the will, what is in the estate rather than hiding and just generally being provocative.  Often I come across people who are wound up and motivated to take legal action on what is a quite trivial lack of openness by an executor.