Acting as an executor is acting in a position of trust. But what happens when that trust is broken?
For most families, estate administration is a time of grief. Yet sometimes, the person tasked with managing the estate acts in ways that raise alarm bells. Unexplained delays, lack of communication, assets going missing, or signs of favouritism. These actions might feel wrong, but are they legally considered executor misconduct?
In this guide, we break down what executor misconduct looks like under Western Australian law, how to prove it, and what steps you can take if you suspect something is not right.
What is an executor’s role?
An executor is the person legally appointed to carry out the wishes outlined in a Will. In Western Australia, an executor has a fiduciary duty to act honestly and carefully, and to prioritise the interests of the estate and its beneficiaries over their own.
Executors are expected to handle the estate efficiently, pay any outstanding debts or taxes, and distribute what remains according to the Will. This includes keeping clear records, managing assets properly, and keeping beneficiaries informed along the way.
What executors should be doing
A capable executor should:
- Secure and protect the estate’s assets (including property, bank accounts, investments, personal items)
- Apply for probate (if needed)
- Pay off any outstanding debts and taxes
- Distribute what’s left to the named beneficiaries, as the Will directs
- Keep clear records and communicate regularly with those entitled
While the process can take time (often 12 to 18 months in WA), executors are expected to move things forward with transparency and care. When they don’t, and those delays or decisions lack explanation, cause harm or are unfair, it may cross into the realm of misconduct.
What counts as executor misconduct (and how to spot it)
Unreasonable delays
Finalising an estate can take time, especially when there’s property involved or legal complications to work through. However, if 12 to 18 months have passed and there’s still no real progress, that’s a warning sign. Repeated excuses or a complete lack of updates may suggest inaction, confusion, or deliberate delay.
Favouritism or unequal treatment
Executors are legally required to act fairly and treat all beneficiaries equally. Favouring one person (whether through early distributions, more frequent communication, or decision-making that clearly benefits that person over others) may indicate bias or self-interest. This is especially concerning when the executor has a close personal relationship with that beneficiary.
Misuse or mismanagement of assets
Selling assets under market value, transferring estate property to family or friends, or dipping into estate funds for personal use are all breaches of duty. Keep an eye out for unexplained transactions, vague answers about asset sales, or estate items that suddenly go “missing”.
Lack of transparency
Executors must keep proper records and be willing to share them. If they consistently dodge questions, refuse to share financial documents, or provide only partial information, it may be because they’re trying to avoid scrutiny or cover up poor decisions.
Ignoring legal and financial obligations
If tax isn’t paid, insurance lapses, or creditors are ignored, the estate and the executor could face serious financial consequences. These failures may also reduce the inheritance available to beneficiaries. If you’ve raised concerns about bills or liabilities and the executor brushes them off or goes quiet, it’s time to get advice.
How to prove executor misconduct
Gather the right evidence
Start by collecting anything that can support your concerns. This might include:
- Bank statements or transaction records showing estate funds being withdrawn or redirected
- Property sale records that raise questions around timing or value
- Copies of emails, texts or letters showing delays, refusals to communicate or inconsistent updates
- Photos or videos of physical assets that are missing, damaged or being used by someone without authority
- A copy of the Will and any probate documents
The more detailed and factual your records, the better. It’s also helpful to keep a log of communication, including dates, what was requested, and whether a response was received.
Request a formal accounting
Beneficiaries are entitled to understand how an estate is being handled. You (or your lawyer) can request a formal accounting from the executor, which should detail:
- All assets and liabilities of the estate
- Any income earned or payments made
- Distributions already made or planned
If the executor refuses or fails to provide a proper accounting, this can form the basis of a legal challenge or a court application for their removal.
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What to do if you suspect misconduct
Even if something feels off, it’s important not to jump to conclusions. Not every delay or mistake means the executor has breached their duties. That said, if concerns persist and you’re not getting clear answers, you’re well within your rights to take action.
1. Start with a clear request
Often, the first step is simply asking the executor for an update in writing. You might request a timeline for finalising the estate, clarification on the sale of an asset, or a copy of the estate’s financial summary.
Put your concerns in writing and keep a record of the request. If the executor refuses to respond or continues to avoid their responsibilities, that written record becomes useful down the line.
2. Seek legal help if things don’t improve
If the executor still won’t cooperate, or you’ve uncovered more serious issues, the next step is to speak to a lawyer.
Depending on what’s uncovered, your lawyer may:
- Formally request an accounting or disclosure of estate records
- Issue a letter of demand
- Apply to the Supreme Court of WA for investigation or removal of the executor
Each case is different. Sometimes issues can be resolved quickly with the right legal pressure. Other times, court intervention is necessary to protect the estate and the people who stand to benefit from it.
What the Court can do
If an executor fails in their duties (and especially if there’s evidence of misconduct) the Supreme Court of Western Australia has the power to intervene.
Depending on the circumstances, the Court can:
- Remove the executor and appoint someone else to take over the estate
- Compel the executor to provide a formal accounting or return misused funds
- Freeze estate assets to prevent further damage
- Order compensation to beneficiaries if losses have occurred
- Refer serious cases for criminal investigation, such as fraud or theft
In Western Australia, these powers come from legislation including the Administration Act 1903 (WA) and the Trustees Act 1962 (WA), and the inherent jurisdiction of the Supreme Court. Each of these gives the Court discretion to act when the estate’s proper administration, or the fairness in the way it is being dealt with, is at risk.
A fair outcome starts with good advice
If you’re dealing with an executor who’s not meeting their obligations, it’s important to trust your instincts and take steps to protect your position.
As experienced estate litigation lawyers in Perth, we support beneficiaries, executors and concerned family members through some of the most complex and emotionally charged estate matters in Western Australia. If you’re unsure where you stand, start with a free 15-minute consultation and get the clarity you need to move forward.
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