How To Claim One’s Rightful Share Of Estate?

Source : The Sunday Times, Feb 24, 2008

Q I AM among the beneficiaries of an estate that is made up of the proceeds from the sale of a property. However, I am facing the problem of getting my rightful share from the executor.

I have a certified true copy of the will but I do not know what my rights are and how to go about claiming my share of the estate.

I was told that the executor has already committed a breach of trust by not distributing my share to me.

Please advise if there is any waiting period before I can take legal action, since I know that the property has been sold and the executor has taken the proceeds.

If there is, how long do I have to wait? What type of legal action should I take and what are the chances of recovering my share?

A An executor has a duty under the law to ensure that the assets in the estate of the deceased are distributed in accordance with the wishes as stated in his will, whose authenticity has been proved in the courts.

In your case, it appears that the deceased’s will has already been proved and that a grant of probate naming the executor has already been obtained. This is typically required before realisation of any assets can take place, such as the sale of the deceased’s property.

Prior to the distribution of the estate to the beneficiaries under the will, the executor also has a duty under the law to pay all the deceased’s debts and the reasonable estate expenses. This may, in certain cases, result in a delay in distribution.

Other factors causing delay include legal complications in administering the assets or being unable to determine the full extent of the estate, which will create difficulties in accounting for the exact amount that each beneficiary ought to receive.

In your case, given that as far as you are aware, the estate of the deceased comprised only of the property’s sale proceeds and that you are one of the named beneficiaries in the estate, it would be prudent of you to ask the executor about the status of the administration of the estate.

You can also, if you wish, ask for an account of the estate, which you are entitled to, as all executors are bound by duty to keep accounts of their management of the estate.

If the executor does not give you an explanation, or gives you one that you find unreasonable, you should seek legal representation in order to make a claim against him for an account of the estate, and subsequently for your share of the estate.

Such a claim will involve court proceedings and may be an expensive and lengthy task in the event that the executor contests your claim.

In such proceedings, you may also ask the court to grant orders to the effect that distribution of the estate (in the absence of any other impediments) be distributed to you within a specified time.

The length of time that has elapsed from the sale of the property will also be a relevant factor.

Navin Lobo
Lawyer, Harry Elias Partnership

Advice provided in this column is not meant as a substitute for comprehensive professional advice.