Have you been named as a beneficiary in someone’s will? Or were you expecting to be named in the will but found out that you were intentionally (or accidentally) left out? Either way, do you know what your rights and entitlements are? They might actually be different to what the will sets out – if you’re even able to get a copy.
When information is withheld from you, you’re more likely to be mistrustful, especially if you’ve been kept in the dark and you were never provided with a copy of the will. You may require legal assistance to understand whether you are entitled to:
- receive a copy of the will
- be provided with a summary of the estate’s assets and liabilities
- be included on the will if you were left out, or
- receive a larger distribution from the estate than the will provides for if it doesn’t provide enough.
It is important to understand which assets and liabilities make up the deceased’s estate to get a clearer picture of what you’re potentially entitled to. However, this can sometimes be made challenging, when other beneficiaries may be acting suspiciously or intentionally keeping you out of the loop.
If someone else is administering an estate in a questionable or secretive way, you will probably require legal assistance to ensure that your rights are protected. But for now, here’s what you need to know about your rights as a beneficiary in a will or an estate:.
The Executor’s Fiduciary Obligation
So that you understand, the executor is the person named in the will as the person responsible for carrying out the terms of the will once the will-maker has deceased. If there is no valid executor, a court may appoint an administrator instead.
Any executor or administrator holds a fiduciary relationship with the estate’s beneficiaries (and potential beneficiaries). This means that the executor/administrator must act in accordance with the will and the law, ensuring that it is carried out appropriately and for the benefit of the beneficiaries. The executor must carry out their responsibilities with care and loyalty to the deceased’s last wishes and the beneficiaries. The fiduciary duty requires that the executor acts only in the best interests the beneficiaries.
A Beneficiary’s Right to Information
Once an executor begins administering a will, they must promptly inform all beneficiaries of their entitlement under it. Alternatively, if there is no will, the beneficiaries should also be informed accordingly and that their entitlements to the deceased’s assets will be determined by the Queensland laws of intestacy (outlined in Part 3 of the Succession Act 1981).
If you are a potential beneficiary and find that you are not adequately informed of your entitlement, the law in Queensland grants you specific rights to acquire information about the will and your entitlement under it. Section 33Z of the Succession Act requires that the executor or other person in control or possession of the deceased’s will must provide a copy of the will to any person named in it upon request. They must also provide it to the following people, even if they are not named:
- a person mentioned in any earlier will; or
- a spouse, parent or child of the testator; or
- a person who would be entitled to a share of the estate of the testator if the testator died without a will; or
- a parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate if the testator had died intestate; or
- a creditor or other person who has a claim at law or in equity against the estate; or
- a person who may apply for an order under section 41 (for example, someone who is/was financially dependent on the deceased in some way) .
Beneficiaries also have the right to be informed of the estimated date of distribution of the assets they are entitled to receive and any delays. If they are expected to receive a legacy, they should generally obtain that legacy within 12 months of the deceased’s passing. If it is paid beyond 12 months, the executor could be liable to pay the beneficiary the legacy with interest.
Beneficiaries also have the right to be informed about any litigation against the estate that may impact their entitlement under the will.
Determining a Beneficiary’s Interest in an Estate
Once a beneficiary receives a copy of the will, they can usually identify their interest in the deceased’s estate and whether or not it is reasonable. However, beneficiaries should always seek professional advice from lawyers to be sure their understanding is correct.
A beneficiary is also entitled to monitor estate property administration, which means they also have a right to information about their interest in the estate. Estate documents, therefore, ‘belong’ in a sense to beneficiaries, and they must have access to them. For instance, if the deceased holds an interest in a particular asset, the beneficiaries, through the executor, have the right to access information relating to that asset. Examples may be property title or mortgage information, vehicle registration papers, or bank account statements. However, they generally aren’t entitled to anything more than information unless special circumstances call for it.
Once a summary of the estate’s assets and liabilities is reviewed to determine the overall net value of the estate, all beneficiaries should be in a position to determine whether they believe their entitlement is fair and reasonable. If a beneficiary believes that the distribution of the net estate will result in an unfair distribution, they can elect to challenge the estate to make further and better provision for them. This is known as a Family Provision Application which we discussed in last week’s blog.
How will the estate be distributed if there is no will?
If a person died without a will, they are said to have died ‘intestate’. In Queensland, Part 3 of the Succession Act 1981sets out how an estate is to be distributed in this instance.
In Summary, the estate is to be distributed as follows:
Source: The Public Trustee, Queensland. Note: the term “issue” in the red box above simply means a child.
Beneficiaries choosing to challenge an estate in cases of intestacy is much less common because the legislation is designed to be fair. However, it is still possible to make a Family Provision Application in these circumstances if a beneficiary has substantially greater need for further or better provision from the estate.
Understanding your rights as a beneficiary will helps protect you from uncooperative behaviour and potentially selfish people looking take advantage of a situation. Knowing your rights is also crucial to ensuring that you receive what you’re entitled to.
If you need assistance to obtain a copy of a will, Roche Legal’s no win no fee lawyers in Brisbane can help. We are experts in estate litigation, professional negligence in relation to improper estate administration, and personal injury insurance/compensation. If you are a beneficiary requiring further information concerning your rights, do not hesitate to contact us today for a free consultation.