The loss of a loved one is an emotionally challenging period, and in a perfect world, wrapping up their affairs should be smooth and respectful. Typically, the deceased has appointed an executor to administrate, the estate and beneficiaries are reliant on this person to carry out the deceased’s final wishes faithfully and respectfully.
Sadly, it isn’t uncommon for beneficiaries to question an executor’s handling of the estate. Whether you’re dealing with suspected financial misconduct, unexplained delays, or a complete lack of communication, the stress can exacerbate an already painful experience into a bitter dispute. If you’re in a similar position, you aren’t powerful. There is a structured legal process to remove an executor NSW. If the executor’s conduct is a threat to the legal and proper administration of the deceased’s estate, you have a path forward.
What Does an Executor Do?
Before detailing the steps necessary to remove an executor, let’s establish what the role of executor entails.
An executor has a range of roles, but as a legal personal representative, it is their task to protect the estate. In addition to identifying the will and applying to the Supreme Court for a Grant of Probate, the executor must identify and value all the deceased’s assets, pay off outstanding tax bills or debts, and finally, distribute the remaining assets according to the deceased’s final will and testament. They are charged with legal control over these assets, and the law requires absolute impartiality and honesty.
Grounds for Removing an Executor in NSW
The NSW government strictly outlines the responsibilities of executors, and though the role is demanding, there is no expectation of perfection. Minor disagreements over an asset or a slight delay in a phone call are not sufficient to trigger an intervention. If you truly believe you must remove an executor NSW, you must demonstrate that their conduct is harming the estate. The most common grounds for executor removal in NSW include:
- Unreasonable delays
A delay in applying for the Grant of Probate or distributing the assets accordingly, despite the debts being addressed, could be considered unreasonable.
- Mismanagement
If property or other assets have been sold below market value, you suspect they are using the estate’s assets to enrich themselves, or they are intermingling the estate’s funds with their personal bank accounts.
- Conflict of interest
Impartial administration is a must, and a conflict of interest that clashes with their fiduciary duty to the beneficiaries is an issue.
- Incapacity
If the executor is unable to carry out their duties or is incapacitated by mental or physical illness, severe cognitive impairment or decline, or is incarcerated long-term, they are unable to fulfil their legal duties and can be removed.
- Communication failure
If the executor consistently and persistently refuses to respond to your questions or inquiries, that’s an issue that can freeze the process. They don’t need to provide beneficiaries with daily updates, but communication is required.
The Process for Removing an Executor
If the executor’s behaviour reaches the incapacity or misconduct threshold, there is a pathway to removal. The Supreme Court can remove an executor who is not acting in the estate’s best interests. This power also allows the Supreme Court to appoint a new executor who will act in the estate’s best interests.
The first step in initiating this process is filing a court application, and this is typically actioned by a co-executor or beneficiary. The Supreme Court isn’t interested in drama or taking sides; they simply want to assess whether the executor is or isn’t acting within the estate’s best interests, and if they are satisfied that the executor is mismanaging the estate, they can revoke the Grant of Probate and appoint a new administrator.
Only the Supreme Court has the power to take this action unless an executor is willing to step aside voluntarily.
What Beneficiaries Should Do Before Applying to Court
Court action can be time-consuming and costly to the estate itself, so removing the executor is a final resort. If you have concerns about how a loved one’s estate is being handled, there are some practical steps to take before applying to the court.
- Start by raising concerns, in writing, directly with the executor. A polite, formal email or letter that outlines your questions about assets or timelines can serve as a paper trail to prove that you sought resolution and your efforts went unheard.
- As a beneficiary, you have a right to request a formal accounting of the administration. Part of an executor’s legal responsibility is clear record-keeping, so before you pursue court action, request the interim statement. It could clear things up or provide the evidence you need.
- If the executor has ignored your questions or requests or provided vague or unsatisfactory answers, start saving evidence. Create a log of every communication attempt, timeline promises, and any documents that suggest a conflict of interest or asset waste.
- You should always consult the experts. Contact a wills and estate lawyer to evaluate your evidence and offer objective advice on what comes next. An experienced lawyer can advise whether your evidence meets the legal threshold and explain your options.
How AJB Stevens Can Help
Wills and estate law is complex, and it’s the last thing a grieving loved one should be forced to think about while processing their loss. At AJB Stevens, our team of experienced will and estate lawyers can provide practical and strategic guidance if you have concerns about executor conduct. Our focus is on protecting the estate’s integrity to ensure you receive your rightful inheritance, whether that means mediating to find a resolution or taking it to the Supreme Court to remove an executor.
If you believe you are dealing with a negligent or uncommunicative executor or you want to know what your rights are, AJB Stevens is here to support you. Get in touch to arrange your free consultation and sit down with a member of our wills and estates team to discuss your options.
