Part 3

Jordan Vaka
One final question around the role of the executor before we move on to the risks. Again, what happens if the executor disagrees with the wishes of the will maker?

David Patkin
Can’t. You can’t do that, because, remember, you’re standing in the shoes of the deceased person, and the whole idea of having a disagreement with the deceased person sort of would sort of imply that you’re actually discussing these things with them and that sort of thing. Unfortunately, as much as you may hate it as an executor, and you might think this is a ridiculous provision, you’ve got to follow that will to the letter, even if you think it’s not just  if it gives 100% to a charity and the deceased has left some poor child who’s really struggling, there’s. The law will support that child in terms of a claim on the estate, but unfortunately, the executor has to follow the will. That’s their blueprint. There’s no. There’s no wiggle room. They’ve got to follow that will and distribute. Yeah.

Jordan Vaka
And that can be complicated when you’ve got estranged children or maybe children who spend thrifts and they could fritter the money away. You just have to. You have to distribute it according to the will, whether you like it or not.

David Patkin
And that can be a strength, because you. You might be getting heaps of pressure and you just say, hey, there’s the.

Jordan Vaka
Will, don’t blame me.

David Patkin
Can’t. Yeah, what can I do? You know, if you think if. If the beneficiary suspected there was an undue influence or the will maker didn’t have capacity when they made the will, they might be able to get that unwound, especially if there’s a diagnosis of dementia or something that predates the time they made the will, then. Oh, absolutely. Then we can revert either to a previous will, or if there was no previous will, then we go to intestacy, which may be what everyone wants, so we can definitely look at unraveling that. But if they had capacity and that’s what they wanted to do, and we can’t find any undue influence or  pressure that on the will maker that made them do it. That’s the will. Yeah. Yeah. And. And going back to claims, there’s a number of points you can claim at.

So it’s a really. It’s a strategy  we can target the will itself, or we can say  because, as I said, there was concerns around undue influence or there was concerns around capacity to make that will, so we can actually attack the will, or if there’s none of that. We can say, oh, yeah. All right, we. We accept that’s the will, but we’re making a claim on the distribution because. Yeah, and that. That’s a totally different area of law. Each section is a totally different area of law with different  history, case history and all this sort of thing. And. And it’s like  with any strategy, you. You look at the whole gamut and you look at, well, where’s the weakest link that achieves the best outcome for me?

David Patkin
And then you target that rather than  fighting an uphill battle against something that you just. You’re never gonna win. You’re better to put your resources into the area that you’re gonna have the best effect.

Jordan Vaka
I think it speaks to the power of the will as a document, which is why the original’s required by the executor, which is why anybody who’s had a will draft and had to sign off on it needs to be witnessed. It’s all very methodical and very detailed approach, and it can seem a little bit silly because it’s a couple of pages of paper, but that will drive everything once you’re gone.

David Patkin
And I think the main thing about that is that these couple of pieces of paper are dealing with millions of dollars of assets. So that’s where, again, you’ve got a way up. If you’ve got a complex estate and you’ve got some problems with the beneficiaries and you’re doing a diy  post office will, $25, that is gonna actually  deal with millions of dollars of assets and complex sort of. Yeah, that’s where the sort of doesn’t make sense, you know? So you really want to put skimp on it.

Jordan Vaka
Don’t skip on that.

David Patkin
Get it right, and then you’ll a lot less problems for your executor and your estate. Yeah.

Jordan Vaka
And speaking of problems, I mean, let’s. We’ve covered a lot of it already, but let’s talk a little bit about the risks that can flare up for you as an executor. Financial and legal, it will come to. But probably the big one that pops to my mind is that family conflict idea that people will get very annoyed, and you will be the point person for that irritation. You mentioned earlier that communication is probably key there. What key points, I guess, along the way, would you encourage communication from the executor?

David Patkin
You know, again, everyone wants, and I’m assuming here, that the executor is  a loved one of the deceased and  they’re part of their grieving as well  so you definitely won’t have time to grieve. But  if you’re engaging a lawyer, I definitely encourage the executor. I mean, the lawyer will do this in any event, but  yeah. Communicate with the beneficiaries around expectations and doing all that work for you. You know, you don’t, again, you can do it yourself, but it’s not something you do a lot.

I mean, you’re probably going to be an executor once or at most  once, maybe twice  in your lifetime, and they’re probably going to be so spaced out that, but you’ll probably forget the first time that you did it  so generally, and again, depending on complexity of the estate, just engage professionals to do it for you and then you can, you know. Right. You’re still gonna, you’re still the, at the end of the day, you’re still responsible, ultimately. So  you still hold that position if you take it. And, but  if you use, if you engage professionals to help you with advice, then if things get nasty with some of the beneficiaries, you can sort of basically hide behind the  the lawyer and say, well, this. Yeah.

David Patkin
Whereas if you’re doing all yourself, then you’ll get in heated, and it’s nothing worse than you explaining things to the beneficiaries and you haven’t been advised, and you get it wrong. And then a beneficiary speaks to one of their friends and says, you know what? That’s not right. Or the beneficiary has a lawyer, and the lawyer said  that’s not right. Then you can find yourself in some pretty difficult areas pretty quickly as an executor. Yeah, yeah.

Jordan Vaka
Would you encourage, and I really don’t know the answer to this, but you’ve got an estate, you’re the executor of, and the will maker has excluded somebody who would have a reasonable expectation of being a beneficiary.

David Patkin
And again, yeah, sorry, would you want.

Jordan Vaka
To communicate with them as well, or would you cut them out of the communication at that stage?

David Patkin
And again, look, as you can appreciate, people have been dying for a long time, right? So the law around this covers every single scenario more than you can even dream up. You know, the scenarios  you read. I mean, we read case law all the time, and the scenarios that pop up are incredible. And that’s an exact thing. Some beneficiary asks the executor, I want to see the will. The executive thinks, well, you’re not in the will. I don’t have to show you right now, that’s a total, that’s a bit of a common sense thing that the executives formed in their mind.

Jordan Vaka
But justice, the executor is legally obligated to provide the will to all beneficiaries or only upon request.

David Patkin
Definitely all beneficiaries named in the will. But it doesn’t end there. It doesn’t end there. The will has to be disclosed to any beneficiary in the will. And any beneficiary, any person who would be a beneficiary if the person died without a will. So we go back to that intestacy scenario. Okay, so if you are, if the will cuts out a child, okay, but if that person died without a will, that child would be a beneficiary. That child has a right to see the will even though they’re not named in it. Okay, so, and this does happen because the executor will say, well, no, I don’t have to show you because you’re not in there. That’s a big, that’s a big no. Okay.

And, and that beneficiary will go off and get a lawyer, compel the executor not only to produce a copy of the will, but maybe even pay the legal costs of that child’s lawyer because they had to incur that cost to get something that they’re legally entitled to. So again, why give that response as the executor when you don’t really know what you’re saying? You know, every single scenario has case law, has legislation, has something guiding it. So there is answer there. Yeah, so the, I mean, the short answer there is every beneficiary, plus any person who would be a beneficiary via intestacy. And of course you got to know the intestacy laws to make that call across different jurisdictions. Yeah. Again, depending on where the asset was  usually, again, the law that applies is where the asset is.

So if one of the properties, if you die in Victoria, but you’ve got a property in Queensland, it’s a property of Queensland that governs that asset different to the. So things can get pretty complicated. And this is why last week I spent a whole day at a professional development conference with  a bunch of estate planners discussing all of these scenarios and ins and outs. So we look at this  all the time we have to meet our obligations as being a professional. Yeah.

Jordan Vaka
I think also that idea of not providing the will, I can understand it, and  there’s always a background to it, but I see these kind of things as every decision you make can either move you down the step towards conflict or away from that conflict. And you maybe conflicts are unavoidable, but if you can avoid it, I mean, by providing a document that really you had nothing to do with, you’re just named in.

David Patkin
Exactly, exactly. And you’ve got the, and that’s the, that’s what the executor has to do. You know, you’re not making decisions based on what you want to do, okay? You’re making decisions, you’re clinging. You’ve got this structure, you’ve got this really good supportive structure of the will and the law  so that’s your barrier. So that’s where you can say to frustrated and angry beneficiaries, sorry, guys  it’s not my decision. You know, I’m the vehicle for this. I’m just doing what I got to do. But again, if that’s not communicated properly, then  so that’s where  obviously there’s a certain expectation that you will communicate  just with anything  with any professional  you want to communicate to your client  all that sort of stuff.

But you know, you don’t necessarily have to knock yourself out to tell the beneficiaries everything  there’s a school of thought that, well, they can go off and find out this stuff for themselves, but if you want to minimize  the drama and  take the heat out of it, just explain it to them  you’re not giving them anything  any advantages or disadvantages. You’re just explaining. This is how it works  and if they want to test that, if they go to their lawyer will tell them exactly the same thing. So problems can arise where you don’t communicate that they get certain expectations or they  and then they flare up and there’s a big argument, sometimes a fight. And then if they subsequently learn, well, that was right, they’ve still got this bad vibe.

David Patkin
And, yeah, it’s not a happy fix.

Jordan Vaka
Being broken by that stage and try to preempt it with better communication and professional advice. Which brings me through to that. I think the final thing I’d like to cover is I’m keen to learn what good practice looks like as an executor. And I want to learn about that from the other direction, saying, what are some of the really big mistakes that you’ve seen people make when it comes to managing an estate?

David Patkin
Generally, like any accounting, it’s an accounting exercise. So keeping records, having all the information before you, dealing with things, this probably comes straight out of the judgments, but dealing with matters in a timely manner  big delays where you can’t explain why there’s been a big delay. I’ve got a matter at the moment where the executor hasn’t even made the application for the grant of probate, and because she’s going through a family law  dispute and all that sort of thing. So she’s got other things on her plate, but we’ve got this estate and we’ve got beneficiaries jumping up and down  so, yeah, just not doing things in a timely matter for no other. No reasonable  excuse. And even though you can sympathize with her going through her family law problem, it’s really no excuse.

She should either renounce or step down as executor.

Jordan Vaka
Yeah.

David Patkin
Or just provide the information and get on with it, you know. So I’d say, yeah, the big things are keep records of everything and do things in a. In a timely manner. No big delays that have no reason  for that. Yeah, yeah, yeah.

Jordan Vaka
I think that makes a lot of sense. And it’s. You describing this and accounting exercise just nails it, I think, because it’s happening  the train’s rolling. You need to make sure you just keep track of it and keep accurate records and be able to defend and reflect on it as it goes through. Yep. And  there’s some areas we haven’t touched on. We haven’t touched on  what can really arise in a dispute, funding disputes, things like that. But what I think we might do is we might draw things to a close. And if people did have other questions or wanted to run things by you, where’s the best place to reach you?

David Patkin
Yeah, well, I mean, they can stop by the website. It’s not too fancy, but it’s got my contact details and an email. I’m happy on the phone. I mean, the benefit of being sole practitioner, and this is what I find a lot of clients appreciate, is that when they ring the number, they can just actually speak to me, which can be quite surprising to people.

Jordan Vaka
Yeah. And you return phone calls. This is not a normal legal practice.

David Patkin
Yeah, yeah. So, yeah. So just. Just jump on the phone. I mean, of course  you can send through an email and things like that, but  often the query can be nipped in the bud pretty quickly with a couple of minutes on the phone. So that’s probably the quickest and easiest. And then it’s always good to, before that phone call to get as much information  as they can. Because I might sort of ask a few sort of questions and that’s fine. No problem with asking a few questions and saying, look, you need to find these things out first, then we can have a better chat. But yeah, just, yeah, jump direct email or phone. Yeah, it’s fine. Yeah.

Jordan Vaka
And that website is dmplegal.com dot au. Yeah. And yeah, I think the diligence that’s required to be a good executor, I think, can leave people a little bit unnerved or a little bit uncertain. So I think reach out to get good help, but also recognise that along the way you are going to have to make decisions. You can’t just keep asking questions and asking questions. You are going to have to make some decisions at some stage and you have the guidance and the capacity around you to do so.

David Patkin
And if you’ve got a big trip planned and the timing just is not good, you can step down. Don’t you know, most wills, most good wills should have an alternate executor appointed. So don’t sweat it, step down. It’s not that bad. And that’s why the will maker appointed a backup. In the event that you couldn’t do it or didn’t want to do it, you don’t have to submit a reason, you just say, I don’t want to do it and bam, you’re released. But don’t remember that intermeddling, don’t intermeddle.

Jordan Vaka
Don’t need to keep it clean.

David Patkin
And that’s where don’t start the process and then think, you know what? Nah, I don’t want to do this. No, no. If one thing you take out of this podcast as an executor is if you don’t want to do it, do nothing, and then you’re all good. Yeah, yeah.

Jordan Vaka
We had Lucy Percy on an episode a little while ago around estate planning, and she said that she sees the will and the estate plan as that last act of love by the deceased. Being an executor is the last act of love you’re doing for the deceased, but doing it fully and doing it properly and not sacrificing yourself is implicit in that. Don’t martyr yourself doing something that can be quite difficult. When you can, as David says, you can renounce it and get out of it something. The big ones are. Keep really good records, work methodically, but don’t rush it. Be really detailed. Seek really good advice. Have a team of advisers around you, and those advisors should be people you’re comfortable asking questions of, questions that might seem silly to you, they will have heard 100 times before.

And just get through the process as smoothly as you can and just get to the other side so you can.

David Patkin
And you might not need. Don’t forget, you might not need the grant. I’ve told, yeah, I’ve told a lot of people, not a lot, but  I’ve told people over the years, you don’t even need the grant. Don’t even worry about it. Yeah, yeah, yeah, yeah. And, yeah.

Jordan Vaka
Ask questions and work through it slowly, but we will draw it there. David, thank you so much for joining me.

David Patkin
Thank you for.

Jordan Vaka
And thank you again for listening to Life, Loss & Legacy, the PlanningSolo podcast for people going through bereavement. My name is Jordan Vaka, and we will see you at the next one. Thanks a lot.

David Patkin
Cheers. Bye.