Can Executors Negotiate With The Beneficiaries of a Will?

An executor is an individual or an organisation that is appointed by the testator of a Will to manage the deceased's assets. An executor needs to act impartially, as well as defend the estate and act in the best interests of the beneficiaries. As their authority comes from the Will itself and the law, their powers are also limited by them. They cannot override a Will’s terms and the testator’s intentions.

The general duties of an executor may include:

• Arranging the funeral for the deceased
• Determining the deceased's assets and liabilities
• Obtaining Probate of the Will
• Administering the Estate
• Distributing assets to beneficiaries in accordance with the Will.

Generally, an executor cannot negotiate with the beneficiaries on how to distribute the assets between the parties because they must follow the terms of the Will. This is beyond the executor's powers and responsibilities. If an executor is considered to have excessively interfered in matters outside their authority, their actions can be challenged by the beneficiaries, which may cause the executor to be removed by the Court.

However, in some cases, an executor can negotiate with the beneficiaries of a Will. It depends on the specific context and content of the negotiation. These circumstances include, but are not limited to:

1. Claim for commission: An executor can negotiate a claim for executor’s commission with the beneficiaries if there is no specific provision for paying any commission to the executor in a Will.
2. Family provision claim: In NSW, eligible people can file a family provision claim if they believe that a Will provides inadequately for their financial needs. In this circumstance, the executor is empowered to negotiate a settlement with the claimant before the claim has to be adjudicated by the Court so as to avoid costly litigation.
3. Interpretation for a vague clause of a Will: Sometimes there are vague, unclear clauses in a Will, which need to be interpreted more explicitly in order to take the next administrative steps like the distribution of assets. In these cases, the executor and the beneficiaries can work together to reach an agreement so as to save legal costs. If the beneficiaries cannot reach an agreement the executor may have to apply to the Court for advice.
4. Practical management of the Estate: Sometimes the executor needs to use their judgment to manage the estate effectively. For example, renovating or repairing a property or even selling some of the assets that were intended to be left to the beneficiaries to satisfy the testator’s debts or taxes.

If you are an executor or a beneficiary of a Will and you need legal assistance, contact us for a free thirty-minute consultation with one of our team who specializes in deceased estates.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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