When someone creates a Will, they’re asked to choose someone they trust to act as executor of their Will after they pass away. And as long as the nominated person is competent and over 18 years of age, Will makers are entitled to appoint whomever they want to carry out their final wishes on their behalf.

What Is The Role Of An Executor?

The role of an executor (or administrator) of a Will is often demanding and complex. Once they have obtained a Grant of Probate, an executor is responsible for all matters regarding the ongoing management and protection of the deceased estate until such time as distribution has been completed. And the executor needs to act honestly, properly, and fairly when carrying out the duties which have been entrusted to them by Probate Court.

Not only is an Executor responsible for administering the entire estate of the Will-maker following their death, but they also have a duty of care to the beneficiaries as well. The executor will also usually arrange the deceased’s funeral and deal with any other related matters.

If part of the estate is to be held in trust for a specific beneficiary, the executor is also required to provide these assets or monies to a named trustee. While the same person is most commonly appointed as both the executor as well as the trustee, a testator can appoint a different person for each role.

So the main duties of an executor will include identifying, locating, and gathering all assets and liabilities of the deceased, paying off any outstanding debts and other expenses, and then distributing the remaining balance of their estate between beneficiaries as specified in their will and by the law.

Specifically, the legal responsibilities of an executor may include but aren’t limited to:

  • Locating & studying the Will
  • Ascertaining organ donation wishes
  • Obtaining a death certificate
  • Notifying beneficiaries
  • Arranging the funeral service
  • Applying for a Grant of Probate
  • Engaging deceased estate lawyers & Public Trustee for any minors
  • Contacting banks, financial institutions, & life insurance providers
  • Identifying & securing all personal or business assets, interests, & valuables
  • Arranging asset evaluations
  • Calculating & arranging payments of outstanding debts
  • Maintaining proper records and accounts of the estate
  • Completing a final tax return
  • Protecting the estate in any legal actions like an application to contest their Will
  • Administering provisions of their will & distributing assets to named beneficiaries

Can An Executor Be Changed If You Are Unhappy With Them?

Once an executor has been appointed, they generally cannot be easily removed by challenging a Will. For instance, beneficiaries are unable to have an executor removed from their position solely because they are dissatisfied or unhappy with them. At least not without the approval of the Court. And Courts are very reluctant to remove an executor without a compelling justification. Similarly, an executor is also unable to simply resign voluntarily unless the Court approves to have another executor appointed in their place.

Once Grant of Probate has been obtained, the court expects the person who is appointed as executor to be fit and proper in order to carry out their duties of administering the estate correctly. So if an executor does not carry out their duties responsibly, the court can order the Grant of Probate to be revoked and have them removed once sufficient grounds have been established.

So if you’re having problems with an executor, there are some circumstances where contesting a will may still be possible and remove them from their position. That being said, removal of an executor does require a serious dereliction of their duties, whether through intent, negligence, or incompetence. For example, where the nominated executor is inadequately or fraudulently administering the estate, or simply not acting in the best interest of the beneficiaries.

Other circumstances in a Will estate dispute which may be sufficient grounds for removal of an executor include:

  • Not applied for Grant of Probate
  • Causing unwarranted delays in estate administration
  • Not acting in the best interests of the estate
  • Accessing funds without authorisation
  • Poor administration of the estate
  • A conflict of interest
  • Inability to account for estate assets
  • Has committed a serious crime or is in prison
  • Neglection of duties
  • Has ill health or an unsound mind
  • Not communicating with beneficiaries
  • Cannot be located

It’s important to note that any application made to the Courts for an executor to be removed can become a time-consuming and costly process, which is ultimately detrimental to the estate. So it’s a good idea to discuss your situation with deceased estate lawyers first.

Failing to administer the estate properly and putting the beneficiaries’ interests in jeopardy is the only legal way for the court to remove an executor, revoke their Grant of Probate, and issue a new Grant to someone more suitable. And because the executor has important fiduciary duties, they can also become personally liable to both beneficiaries as well as creditors of the estate, even as a result of carelessness.

When Can You Seek The Help Of A Lawyer?

If you’ve been having problems with the executor of a loved one’s estate, or you are concerned they have been acting inappropriately or illegally, the best advice is to discuss a will dispute with experienced will and estate lawyers as soon as possible.

Also, if you’ve been asked to be the executor of someone’s estate, it’s just as important to fully understand what your role will entail, especially if their estate is large or complex. Because once an executor has been appointed it is difficult for them to resign or be removed.

If you need to write a Will, choosing who to appoint as executor of your deceased estate is an extremely important decision which should be carefully considered. To make the process as easy as possible for your loved ones, you may want to make a provision for another named substitute which will allow your original choice of executor to renounce their role.

As you can see, the executor of a Will plays a very important role and there are many reasons why you should talk to one of our experienced estate litigation lawyers. If you’d like information about making or changing your will, acting as an executor, challenging a Will, or your options for removing an executor, contact AJB Stevens today. We’re here to help.