Death can be complicated. While the process of dividing an estate and interpreting a Will can be seamless, it can also occasionally be the source of familial tension, causing arguments and tearing families apart.
An issue that can arise (although we hope it doesn’t for you), is the concern of a loved one choosing to waste or destroy the assets of a deceased estate. Here are our top tips if you ever find yourself in this challenging situation.
Why would someone want to waste the assets of a deceased estate?
There can be a range of reasons an individual might want to destroy a deceased estate – every situation is different, and we all respond differently to death and everything that comes after it.
Someone might choose to waste or destroy a deceased estate if they aren’t happy with the share they were allocated, or if they feel someone was wrongfully allocated a specific asset (or multiple assets).
The end goal is usually to ensure the asset no longer exists, or is worth less money than when it was intact.
So what do I do if a beneficiary wastes the assets of a deceased estate?
A beneficiary refers to someone who receives assets from a deceased estate. For example, the child of a deceased parent, or the wife of a deceased spouse.
If a beneficiary wastes the assets of a deceased estate, it’s important you seek urgent legal advice from an estate lawyer to determine the scale of the loss and the next steps. Every situation is different, so there’s no one-size-fits-all solution to dealing with a beneficiary who chooses to waste or destroy assets.
What if an executor wastes the assets of a deceased estate?
Well, that’s another ball game entirely.
According to state laws across Australia, an executor has a range of legal responsibilities they must fulfil. They’re required to locate all assets, pay off any remaining bills or debts, and complete tasks like submitting tax returns and winding up the entire estate. The executor also has to arrange probate, and then has to distribute all assets according to the deceased’s Will.
It can be a long and involved job description, and a role that should never be taken lightly.
The role of the executor also extends far beyond ticking tasks off a to-do list. They’re required to act in the best interests of the estate and all beneficiaries. So really, their biggest job of all is ensuring all assets remain intact, never acting out of their own personal interest (because that would be selfish and unfair, duh).
As is the case with a beneficiary destroying or wasting assets, legal action can (and should) be taken if an executor is taking advantage of their power and chooses to deplete assets. This type of legal action is referred to as, ‘Devastavit’; a breach of duty to preserve, protect or manage the estate.
Brining devastavit actions against an executor
Devastavit actions can be brought against executors if it’s thought that they are:
- Stealing assets
- Abusing their position and/or being negligent
- Spending money they shouldn’t (or spending it on inappropriate items without consulting other beneficiaries)
- Making investments that are ill-advised
If an executor commits waste in any of these ways, they may become personally liable to those who have a claim on the assets of the estate, like creditors and beneficiaries. Oftentimes, the executor will then be required to repay their misdeeds out of their own pockets.
While we love to make things simple for you – especially in the death and Will-writing space – sometimes our tips and answers can’t be generalised. When it comes to someone (either an executor or beneficiary) destroying or wasting the assets of a deceased estate, your best bet is to seek advice from an estate lawyer so you can tackle the unique situation at hand in the best manner possible.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.