Executors Neglecting their Duties: Showing them the Door

Beneficiaries are often faced with situations where executors are not acting properly or administering an estate promptly.

So, do beneficiaries have to put up with this behaviour? Is there a way that they can show an executor the door?

Executors who neglect their duties may find themselves in trouble – in that the grant of probate may be revoked, and they may be removed as executors.
The Court has the power to revoke a grant of Probate and to appoint another person to finalise the administration of an estate.

The Court’s Considerations

In determining whether to remove an executor, the Court will consider the due and proper administration of the estate, as well as the interests of the beneficiaries. Some of the Court’s considerations are as follows:

The size and nature of the deceased’s estate;
The actions of the executor;
Whether the estate has been completely administered and what is left to administer the estate;
How to safeguard the beneficiaries’ interests and the due and proper administration of the estate.

The Court will not lightly interfere with a testator’s choice to appoint an executor. Ultimately, the Court has the discretion as to whether to revoke a grant.

Grounds for Removal

There are various grounds for removing an executor from office. These grounds include, but are not limited to, the following:

The executor can no longer administer the estate;
The executor cannot be located and is missing;
The grant was issued in error due to a mistake in fact or law;
The testator is found alive after a grant of probate has been made;
The executor wishes to retire from administering the estate;
There have been inordinate delays in administering the estate;
There has been mismanagement of the administration of the estate;
A conflict of interest has arisen;
A dispute has arisen between co-executors which jeopardises the administration of the estate;
Co-executors are bickering with other family members resulting in increased costs;
Misconduct by the executor.

If you are a beneficiary named in a will and are faced with a situation where an executor is not administering the estate, consider obtaining legal advice.

The right lawyer can assist you to navigate through the estate administration process. Please call our experienced team of lawyers on (02) 9101 7000 if you wish to discuss your particular matter.

By Maree Harris – Special Counsel