We hope all Will makers have read our article about how to choose an executor, and understand why appointing more than one person to act in this role is a good idea. To cut to the chase: if an executor is unable or unwilling to act, this causes stress for your family and delay in the administration of your estate. That said, if the executor of a Will has died, lost capacity or no longer wishes to act, what can an interested party do? The answer will depend upon whether a grant of probate has been issued to an executor.
Before a Grant of Probate
In most cases an executor is required to obtain a Grant of Probate. This is a legal document issued by the Supreme Court which allows the executor to manage and distribute the deceased’s assets. If an executor is found to be unable or unwilling to act before probate has been granted, these are the possible actions that can be taken:
Grant appointing an Administrator of the estate
If the executor has died before a Grant of Probate has been obtained and there are no other executors appointed in the Will, another person, usually the beneficiary with the largest interest in the estate, will make an application to the Supreme Court of the relevant state or territory to be appointed the Administrator of the estate. This is done by filing ‘Letters of Administration with the Will annexed’ instead of a Grant of Probate.
If an executor has lost capacity before a Grant of Probate has been obtained and more than one executor has been named in the Will, one of the other executors may apply to the Supreme Court to pass over an executor whom they believe to be incapable and who has not yet begun to act. If there are no other executors, an interested party must make the application. Supporting evidence will be needed in such a case.
Prior to obtaining a Grant of Probate, an executor may be unwilling to act and wish to renounce their position. This means that the executor gives up their right to apply to the Court for a Grant of Probate to administer the estate. The renouncing executor is usually required to complete a renunciation form which is filed with the Probate application. The other executors will then proceed to administer the estate. If an executor renounces probate, they cannot be reinstated as an executor, unless they obtain the consent of the Court first.
If the executor has renounced their role and there are no other executors named in the Will, a family member of the deceased must apply to the Court for ‘Letters of Administration with the Will annexed’ instead of a Grant of Probate.
Importantly, an executor can only renounce their position if they have not ‘intermeddled’ in the estate, that is, acted in a way that indicates they have already accepted their role, for example, they have sold assets or paid debts. In such a case an executor may be prevented by the court from renouncing the role. This protects beneficiaries and third parties by ensuring the person who has intermeddled in the estate takes responsibility for their actions.1
If there are two or more people nominated as the executors under the Will, one or more of the executors may wish to remain as an executor but not take an active role in the administration of the estate. In such a case they may apply for a Grant of Probate with ‘leave reserved’ provided there is at least one other executor appointed in the Will who is willing to act. If there is leave reserved to an executor, they are still an executor, but are called a ‘non-proving executor’ or an ‘inactive executor’. The non-proving executor can make an application for a Grant of Probate later to revive their right to act if, the proving executor is no longer able to fulfil their duties.
After a Grant of Probate
Chain of Representation
If an executor obtains Probate and dies before finishing the job, and there are no other executors with a Grant of Probate, then the deceased executor’s own executor becomes the executor of the Will Maker’s estate with all their rights, duties, and responsibilities. This ‘chain of representation’ is broken if the deceased executor left no Will, did not appoint an executor or no Grant of Probate was granted in respect of their Will.
Removing an executor
If an executor has lost capacity or the executor has misappropriated assets, neglected their duties, are overseas, of bad character or there has been an unexplained delay or failure to communicate with beneficiaries, then a person who has an interest in the deceased estate, including a beneficiary, can apply to the Supreme Court to have the executor in question removed and appoint another executor or administrator of the estate.
Naturally, this is easier said than done, especially if a grant of probate has been given. A court will not remove an executor lightly, and evidence will need to be provided as to why they need to be removed and are no longer appropriate to act in the role.
Disputes between executors and beneficiaries are sadly not uncommon. If, the administration of an estate is being delayed or there is a failure of communication on the part of the executor, call us on 1300 654 590 or email us and let us help you prepare a strategy for moving the distribution of an estate forward.
How we can help
If you are an interested party to a Will and the executor has died, lost capacity or is unwilling to act and you would like to get things moving, call us on 1300 654 590 or email us. We can speak with you about the options available and provide you with a plan so that the estate can be finalised.
The information contained in this post is current at the date of editing – 12 July 2023.