Removing an executor, by choice or by force

Posted on Jul 25, 2019 by Liam Tobin   |   Categories: Wills & Estates

The decision of who to appoint as executor of a person’s will is often overshadowed by who receives the assets, however the decision of who is appointed, and whether that person chooses to accept the appointment are not ones to be taken lightly.

The duties of the executor include preserving and collecting all assets and unsecured debts, keeping accounts, distributing the estate in accordance with the will and lawfully administering the estate.

This process can be made easier with the assistance of a solicitor, however there will still be circumstances when an appointed executor is unable to fulfil the duties of the role and needs to step aside, or needs to be removed due to their failure to fulfil the duties.

RENOUNCING WHERE THE INITIAL EXECUTOR IS UNABLE OR UNWILLING

Provided that the named executor has not yet dealt with the estate (this is called intermeddling) that person (an initial executor) may renounce the right to probate prior to the grant being issued.

Depending upon the wording of the deceased person’s will, when the initial executor renounces, probate, any remaining initial executors, or any substituted executor(s) named in the will may apply for Probate in place of an initial executor.

If the will does not contain provision for the initial executor to be substituted, an application for Letters of Administration may be made to the Supreme Court by the beneficiaries. This is a similar process to an application for Probate but usually requires more extensive evidence to be provided to the Court before a grant is made.

It is not uncommon for an executor appointed in a will to also be a beneficiary. In the event that a sole executor appointed in the will is also the sole beneficiary and that person loses their capacity to make decisions, certain persons may make an application for Letters of Administration on behalf of the beneficiary. Those persons may be a financial manager, power of attorney, or in the absence of any appropriate person, the NSW Trustee and Guardian.

REMOVING AN EXECUTOR ONCE PROBATE HAS BEEN GRANTED

Once Probate has been granted and there are duties of the executor to be completed, an executor is not able to renounce or pass on their duties to another person, but is able to delegate duties to the NSW Trustee and Guardian.

In circumstances where an executor should be removed, any other executors or the beneficiaries of the estate may apply to the Court to revoke the grant of probate and remove the executor.

To make the process of administering the estate of a loved one as easy as possible on those left behind, it is important to ensure that a person’s will allows for an executor to renounce and makes provision for a named substitute executor.

If you have any queries regarding making a will, acting as executor of an estate or making an application in the event that an executor is not fulfilling their duties to administer the estate, contact Baker Love Lawyers.