I am the Beneficiary of a Will – What Are My Rights?
Who is a beneficiary?
A beneficiary is a person who receives a gift or benefit from a deceased estate.
Who arranges the funeral?
The executor is responsible for making the funeral arrangements.
Do all beneficiaries need to agree?
Executors are accountable to the beneficiaries but it is the executors who are in charge of the estate, not the beneficiaries.
Executors must work according to the direction in the Will, not the direction of the beneficiaries.
The executor is answerable to the Court.
What should the beneficiaries be told?
The level of information that executors are required by law to provide to beneficiaries depends on what the beneficiary receives in the Will.
Beneficiaries who are only entitled to specific gifts or money under the Will are generally not entitled to receive full details about the estate.
Beneficiaries who receive a share of the balance of the estate (known as the residue) are entitled to a full accounting of the estate including details of all funds received and expended by the estate.
A beneficiary can bring court proceedings against an executor who fails to provide adequate information. Any proceedings would cause delays and incur additional expenses for the estate.
How long to estates take to administer?
A typical estate is likely to take between 6 months and one year from the date of death until when distributions begin.
But estate are notoriously prone to unexpected delays, usually because assets take a while to collect or sell.
Beneficiaries often feel they wait too long!
After a year from the date of death, executors need to be able to justify the outstanding delay. That explanation may include difficulties getting information, complexities getting control of assets, or arranging sales.
Can beneficiaries reject a gift?
A beneficiary who does not want to receive a gift under a Will can reject or renounce the gift. Usually, the executor would prepare a short agreement to confirm the first is not being taken.
What are the duties of the Executor?
The executor has a duty to carry our the wishes in the Will.
The executor must act in the best interests of the estate and all the beneficiaries, and cannot act in his or her own interests if they are not the same as those of the estate and the beneficiaries.
Where there is more than one executor, they should consult with each other and agree on a course of action.
Executors should keep full and accurate records of how the estate has been managed and distributed and should provide a summary of the financial transactions for the estate to the beneficiaries.
If a conflict arises, the executor cannot take sides with one or more beneficiaries.
It is possible for assets to be distributed other than as set out in the Will. The executor must inform all beneficiaries and obtain consent from all adult beneficiaries to any change, preferably in writing.
Should there be a reading of the Will?
It is not usual to have a formal reading of the Will – this is an American concept. Usually the beneficiaries are notified of their interest by the executor, or the firm of solicitors appointed by the executor.
In Victoria, various categories of people are entitled to request a copy of the Will (if the Will is dated after 20 July 1998):
- any person named or referred to in the Will, whether beneficiary or not
- any person named or referred to in any earlier Will as a beneficiary
- any spouse of the will-maker at the date of death
- any domestic partner of the will-marker at the date of death
- any parent, guardian or children of the will-maker
- any person who would be entitled to a share of the estate if the will-maker had died without leaving a will (intestate)
- any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate if the will-maker was intestate, and
- any creditor or other person who has a claim at law or in equity against the estate of the will-maker and who produces evidence of that claim.
Once probate is granted, the Will becomes a public document at the Supreme Court, and can be viewed by anyone.
Whilst there is no legal obligation on executors to tell beneficiaries of the gifts given to them in a Will, it is good practice