Q&A: Beneficiaries of a will

Written by Gabriella Ferraro and Shavi Senevirathne

So, you’ve just been told that you are a beneficiary under a will but you’re unsure of your role, rights and really, what does it all mean to you? The role of a beneficiary can be confusing at an already emotional and difficult time. This article proposes to respond to some of the common questions we receive from beneficiaries of a will.

What is a beneficiary?

A beneficiary is a person or entity entitled to receive a benefit or a gift after a person passes away.

Is this role different to that of an executor?

Yes! A beneficiary is the person receiving a benefit under the will. However, an executor is an individual that acts in a legal capacity to ensure that the deceased’s wishes are met. While an executor may also be a beneficiary, the two roles are very different.

Who arranges the funeral?

It is the responsibility of the executor appointed in the will to arrange the funeral after that person’s death. In fact, the executor has discretionary power to determine whether a person is cremated or buried and in which way their death is mourned or life celebrated. While a person may make their wishes known in their will, or a beneficiary may have a different opinion, the decision is ultimately the executors to make.

Should there be a reading of the will?

There can be a formal reading of the will, however, it is not mandatory. The beneficiaries will be notified by the executor or lawyer appointed to act for the estate of their entitlement under the Will. Typically, such notification will be accompanied by a copy of the will.

Even if you are not a beneficiary under the will, you can request to view a copy of the will if you meet the following criteria:

• any person named or referred to in the will;

• any person named or referred to in an earlier will as a beneficiary;

• a spouse at the date of death;

• a domestic partner of the deceased;

• a parent, guardian or child of the deceased;

• any person who would be entitled to share in the estate if the deceased had died intestate (without a will);

• any parent of a minor referred to in the will or who would be entitled to a share if the deceased had died intestate; and

• any creditor or person who has a right to claim against the estate and produce evidence of that claim.

What rights does a beneficiary of a will have?

A beneficiary has certain rights to ensure that the estate administration is being handled appropriate. To confirm this, a beneficiary has a right to inspect certain information about estate accounts upon request.

What if I don’t agree with decisions made by the executor?

Typically, you can expect that the executor will be following the deceased’s wishes - with the view to maximising the benefit that beneficiaries will receive. If you are concerned about an executor’s behaviour and conduct in relation to the estate, you should seek independent legal advice. In some cases, where an executor has been shown to engage in inappropriate conduct, the executor can be removed from their position.

When will I get my money?

An executor is not required to make a distribution from the estate before the administration of the estate has been completed. This includes: calling in the assets of the deceased, paying any liabilities and potentially, defending the estate from any claims made against it.

Under legislation, any claims made against the estate must be made within six months following the date probate is granted. In simple estate administration, the estate will then be distributed after the period of six months lapses.

However, in some cases, it may be necessary for an executor to refrain from distribution for an extended period. Typically, there is a general rule, that is not fixed in law, that an executor should attempt to complete the administration of an estate within 12 months of the deceased’s death.

NB: If you are a beneficiary under a will and have questions about your role or the administration of an estate, you should seek independent legal advice to ensure that you understand your rights under the will.

The information contained in this article is general in nature and does not take into account your personal situation. This information should not be relied upon in place of appropriate professional advice. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a solicitor. You can contact a member of our estates team on (03) 9311 8911.