Questions for the Executor relating to estate assets

In any will contest/challenge, the executor must determine whether or not some piece of property is an asset of the estate, or whether it is outside the reach of the will contest/challenge altogether.

Some questions that may arise could be:

• If funds have been held in joint bank accounts, when will they pass to the other owner, outside of the will. When will they form part of the estate assets, and be subject to a will contest/challenge?
• What do I do if the deceased held assets in trusts, or gave away assets before his death. Can they become subject to the will contest/challenge?
• The deceased had farms, operated a business in partnership and had shares in private companies and trusts. How do I value these interests, and how should I manage them?

• What if someone claims that certain assets belong to them under the terms of a constructive or implied or resulting trust?
• I think that the deceased made a pre-death gift only because he/she was under undue influence. Should I try to recover the gift for the estate?
• What should I do about substantial assets that I have found overseas?

Questions relating to the management and possible settlement of the will contest/challenge can be complex and may include:

• Can I safely settle out of court, or should I insist on the will contest/challenge going to court, so the judge will have to make the decision, not me. Can I be sued by a beneficiary if I do this?
• When can I safely distribute the estate assets in accordance with the will?
• Should I consent to a will contest/challenge being filed against me even though it is late?
• How do I establish how much each type of claimant should be paid e.g. a spouse, a child, a former spouse ?
• The deceased remarried and has a second family. When considering an early settlement, how do I balance the needs of each family?

• What rights does a defacto partner or a same sex partner have to commence a will contest/challenge?
• The deceased made gifts to the claimant during his life: what effect does this have?
• The deceased lived overseas for a lot of his life: when does English law apply?
• How do I take income tax, capital gains tax and inheritance tax laws into account?
• What would I do if any of the beneficiaries are aged under 18?

The general principle is that the executor can access the assets of the estate to cover his legal costs and the estate liabilities.

However, sometimes the executor’s actions may place his own personal assets at risk: especially if the beneficiaries are hostile to his actions.

Questions may include:

• If I incur substantial legal fees in defending the estate from a will contest/challenge, can this leave me open to action by the beneficiaries?
• I am a major beneficiary under the will: will I have a conflict of interest if a will contest/challenge is made?
• What do I need to do to remain neutral, and preserve the value of the estate?