Removing an Executor of a Will

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In some circumstances it may be possible to remove an executor or legal personal representative, for example, where they have failed to act or have acted inappropriately in the administration of the estate. An executor must be a fit and proper person to carry out their duties. Removal requires a serious dereliction of duty, either through intent, carelessness or incompetence.

If you have concerns that an executor has acted inappropriately, for example withdrawing and using funds inappropriately, you may wish to seek legal advice. Contact our legal team today for obligation-free advice on executor’s duties and conflicts that may arise. Our wills solicitors are specialists at handling probate disputes and challenging wills. Simply call our helpline or complete the contact form

What is an executor and administrator?

When a person dies, their property passes to one or more legal personal representatives (LPR) of the deceased. If there is a will, the LPR named is called an executor. The executor applies for a grant of probate. If there is no named executor, then the LPR is called an administrator. An administrator applies for grant of letters of administration. The grant allows the LPR to legally deal with the assets of the deceased.

What does an executor of a will do?

An executor (or administrator) has the role of administering the deceased’s estate to those entitled to the beneficial enjoyment of it. The executor will usually make funeral arrangements and deal with related matters. The executor identifies and locates the deceased’s assets and liabilities. They gather in all the assets of the estate, pay out any debts and expenses and then distribute the balance of the estate according to the will and the law. The law relating to wills and the administration of estates varies between States and Territories in Australia.

The executor also hands to the named trustee any asset or money to be held in trust for a particular beneficiary. It is possible for the testator to appoint different persons as executor ad trustee, though in practise usually the same person/s are appointed both executor and trustee.

What does a trustee of a will do?

A trustee takes possession or control of the asset from the executor and holds the asset according to the terms of the trust set out in the will. The beneficiary of the trust then receives a benefit in accordance with the trust or at the discretion of the trustee (if the trustee is given discretionary power).

Can you appoint more than one executor?

Yes, you can appoint more than one executor. Often it is a good idea to appoint a substitute executor in case one executor is unable to or unwilling to act as executor.

Can a court remove an executor?

If you are having difficulties with an executor, it may be possible to have them removed. The probate legislation in all Australian jurisdictions generally provides that the courts may remove an executor at their discretion by the process of revocation of the original grant. Even in the absence of such legislation, the court has inherent jurisdiction to exercise discretion to remove an executor or personal representative from office.

Grounds for removing an executor

• The grant was made to the wrong person; for example, a subsequent will is found naming a different executor.
• The executor is incapable or unwilling to act in the interests of the estate.
• Where there is an unwarranted delay.
• Unauthorised and undisclosed withdrawal of funds.
• Failure to account.
• Conflict of interest and duty.

If you would like advice on how to deal with a dispute with an executor of a will, contact our will dispute lawyers today.