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Being appointed as the executor of a Will is often seen as an honour — a final act of trust from someone who has passed. But with that honour comes weighty responsibility, and in some cases, serious legal risk.
It’s not uncommon for questions or concerns to arise along the way. What if you make a mistake? What if a beneficiary disagrees with your decisions? And can an executor actually be sued for how they handle the estate?
This article breaks down what you need to know about an executor’s legal responsibilities, the risks of getting it wrong, and what options are available when things don’t go to plan.
What is an executor and what are their legal duties?
An executor is the person named in a Will to carry out the wishes of the person who has died. Their role is to take control of the estate, manage the legal and financial process, and ensure everything is distributed as the Will directs.
In Western Australia, an executor’s duties typically include:
- Locating the original Will
- Applying for a Grant of Probate through the Supreme Court
- Identifying and collecting estate assets
- Paying any debts, taxes or outstanding liabilities
- Communicating with beneficiaries
- Distributing the estate according to the Will
This is a role that comes with significant legal responsibility. Executors are expected to act honestly, keep clear records, avoid conflicts of interest, and follow the law at every step. If they fail to do so, intentionally or otherwise, they may face serious consequences — including the risk of being sued.
Can an executor be sued in Western Australia?
Yes, an executor can be sued if they fail to carry out their duties properly. Under Western Australian law, executors have a legal obligation to manage the estate in line with the Administration Act 1903 (WA), the Wills Act 1970 (WA) the Trustees Act 1962 (WA) and where relevant, the Family Provision Act 1972 (WA). These laws set out what executors must do, and what happens if they get it wrong.
An executor can be taken to court by beneficiaries, creditors, or other interested parties. Depending on the circumstances, the Court may order compensation to be paid back to the estate, or remove the executor entirely.
Common reasons executors get into legal trouble
While most executors act with care and integrity, there are several common missteps that can lead to legal action. These don’t always involve fraud or deliberate wrongdoing, as sometimes it can be as simple as a lack of understanding that causes the problem.
Here are some of the main reasons an executor can be sued.
- Failing to follow the Will: Distributing assets to the wrong people or in the wrong proportions.
- Ignoring debts or claims: Paying beneficiaries before settling the estate’s debts or considering potential challenges, such as Family Provision claims.
- Conflicts of interest: Making decisions that benefit the executor personally, rather than acting in the best interests of the estate.
- Unreasonable delays: Failing to act in a timely way, leaving beneficiaries in limbo or causing financial loss.
- Poor record keeping: Not keeping clear accounts of what’s been collected, spent, or distributed, which can make it impossible to defend decisions later.
- Misappropriating funds: Using estate money for personal purposes, whether intentionally or by accident.
Each of these can give rise to a legal claim, especially if the estate suffers a loss or beneficiaries miss out on what they’re entitled to.
What are the legal consequences of executors?
Executors who get it wrong can face real legal consequences. In Western Australia, if an executor mismanages an estate, fails to act, or breaches their duties, they may be personally liable for any losses.
These can include:
- Personal liability: Executors can be ordered to repay losses they caused the estate, even if the mistake wasn’t intentional.
- Court removal: If the Supreme Court of WA finds that an executor is unfit for the role, they can be removed and replaced.
- Legal costs: Executors may be required to cover the legal costs of a dispute, particularly if their actions caused the issue or made things worse.
- Damage to family relationships: Beyond the legal and financial risks, mishandling an estate can lead to lasting conflict among beneficiaries.
These risks aren’t limited to obvious misconduct. Even simple errors (such as distributing assets too early or failing to communicate properly) can expose executors to claims. It’s why clear guidance from the start is so important.
How executors can protect themselves
Seeking legal advice early
A short conversation with an estate lawyer can prevent costly mistakes down the line. At Solomon Hollett Lawyers, we regularly guide executors through their responsibilities and help avoid the traps.
Keeping clear records
Every payment, asset, and communication should be documented. This protects you if your actions are ever challenged and helps ensure transparency for beneficiaries.
Following the Will precisely
It’s not up to you to decide what’s fair, since your job is to carry out the Will as written. If anything is unclear or open to interpretation, get legal advice before acting.
Delaying distribution where appropriate
In WA, it’s advisable to wait at least 6 months after receiving a grant or probate before distributing the estate, especially if there’s a chance of a Family Provision Act claim. Rushing the process can expose you to legal action.
Publishing notice of distribution
Advertising your intention to distribute the estate gives potential creditors or claimants a chance to come forward. It’s a simple step that can significantly reduce your liability.
What can beneficiaries do if they suspect misconduct?
If you’re a beneficiary and you’re worried the executor isn’t doing the right thing, you do have options.
- Keep records of what’s happening (or not happening)
- Save emails, note delays, and document anything that seems off. These can help show patterns of inaction or misconduct.
- Get legal advice early
- Don’t wait until things get worse. An estates lawyer can assess the situation and let you know if there are valid grounds to act. At Solomon Hollett Lawyers, we regularly assist beneficiaries in navigating these issues.
- Raise your concerns with the executor
- Sometimes, a direct conversation is enough to clear up a misunderstanding. If not, formal steps may be needed.
- Consider mediation
- Many disputes are resolved through mediation — a structured discussion process that avoids going to court and can result in a fair agreement.
- Apply to the Supreme Court (if necessary)
- If the misconduct is serious, you may be able to apply to remove the executor or seek compensation for losses caused to the estate.
Protecting yourself starts with the right advice
Executors take on a role that is both personal and legally complex. Mistakes can carry real consequences — for the estate and for the executor personally. But with the right guidance, these risks can be managed, and disputes can often be avoided altogether.
At Solomon Hollett Lawyers, our estate litigation lawyers support executors, beneficiaries, and family members across WA through complex, often emotional estate issues. We’ll help you understand your rights, your responsibilities, and the safest path forward.
If you’re unsure where to start, book a free 15-minute consultation with our team. We’re here to help you move forward with confidence.
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