I am unhappy with the personal representatives administering an estate. What can I do?
As a beneficiary, you have the right to challenge the personal representatives of an estate if you have concerns as to whether they are administering it properly.
A personal representative may be liable for the mismanagement of the estate, a breach of trust, or a breach of their fiduciary duty. Assets are given to personal representatives on trust for the beneficiaries of the estate and there may also be other express or implied trusts on which they hold the estate.
How can I establish if they are doing something wrong?
In order to establish whether something has gone wrong, you need the relevant information. As a beneficiary, you are entitled to receive copies of the estate accounts. If your request is declined by the personal representatives, then provided a Grant of Probate/Letters of Administration have been issued, an application can be made to court for the personal representatives to fulfil their obligations.
What can I do about it?
If you discover that a personal representative has not been administering the estate appropriately, and you have exhausted all other avenues of possible settlement, you could consider issuing proceedings against the personal representatives for the estate to be restored on the basis that they have acted in violation of their duties to the beneficiaries.
You should consider whether the act complained of is a devastavit (breach by the personal representative of his duty to administer the estate), a breach of trust, or a breach of fiduciary duty, and whether the personal representative is covered by professional indemnity insurance or has assets in his or her own name to render a claim commercially viable. There may be an exculpatory clause in the will that the personal representative is able to rely on.
In certain cases it may be that an application for the removal of the personal representative is necessary, and this again would involve a court application.
Seek advice
If you are considering taking action against a personal representative you should seek professional advice from a qualified practitioner that specialises in contentious estates. They can consider your case, examine all options and advise on the best course of action.
This article was first published by Advising Families.