What is a Fiduciary and why are they used?

A Fiduciary relationship is a term used to explain the relationship of confidence that exists between certain people such as a lawyer and client, or the Executor of a deceased Estate and the beneficiaries of that Estate.

A Fiduciary, such as an Executor of a deceased Estate, has a legal and ethical obligation to protect and distribute the Estate of the deceased and to act in the best interests of the beneficiaries of the deceased Estate. A failure to uphold this duty can result in the beneficiaries taking action to have the Executor removed from their role as Executor, as well as actions to have assets of the Estate that may have been incorrectly distributed returned to the Estate.

If you have been asked to be an Executor in a person’s Will, it is important that you understand the nature of this Fiduciary relationship and the duties you must undertake as the Executor.

One of the main duties as Executor is to ensure that the deceased Estate is distributed in accordance with the wishes of the deceased as set out in their Will. The administration of a decease Estate includes, promptly and efficiently applying for a Grant of Probate of the Will. The application for a Grant of Probate needs to be made within 6 months of the date of the deceased’s death, or the Court will consider that the Executor is not acting promptly and efficiently. For example the Court has removed an Executor who failed to administer a deceased Estate within three years of the death of the deceased, stating that such a failure had caused significant mischief or harm to the beneficiaries.

Once Probate has been granted by the Court it is necessary to gather the assets of the deceased, pay any debts of the deceased and then distribute the assets to the beneficiaries in accordance with the Will.

It is also the duty of the Executor to handle any challenges made to the Will, such as family provision claims.

Being named an Executor in a Will carries with it important obligations and an Executor must ensure, that they carry out these obligations as a failure to do so may be considered a breach of the Fiduciary relationship they have with the beneficiaries of the Estate.

If you have been named an Executor in a Will, you should seek expert legal advice on your obligations as Executor. This expert legal advice will include assistance on how to best manage the Estate, as well as advice and guidance on the legal obligations and practicalities of administration of an Estate.

Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you on Wills, Estates and acting as an Executor of a deceased Estate.  If you are living on the Northern Beaches and surrounding Peninsula and need expert advice call The Northern Beaches Lawyer today for an appointment close to home.

Phone 9221 0341 City Experience by the Beach.