How to remove an executor of a Will
In Victoria, an executor of a Will or administrator of an estate can be removed from the process of administering a deceased estate by the Supreme Court under the Administration and Probate Act 1958 (Vic) if they are considered unfit for their role or have not administered the deceased estate properly.
Executors vs administrators – what’s the difference?
Executors and administrators have the same roles and responsibilities in relation to administering a deceased estate and distributing the assets of the deceased.
An executor is the person named in the Will of the deceased who is tasked with making an application to the Supreme Court for a Grant of Probate of the Will. The executor is required to carry out the collection and distribution of the deceased’s estate in accordance with the Will once the grant is made. You can learn more detail about this in our blog, “The role of executor of a Will”.
Administrators are appointed in circumstances where the deceased did not leave a Will. They are also tasked with collecting and distributing the deceased’s estate in accordance with the ‘intestacy rules’ (the law that determines how and to whom the estate is to be distributed when there is no Will), once a Grant of Letters of Administration (similar to a Grant of Probate) has been obtained from the Supreme court.
The rules of intestacy can be found in Part 1A of the Administration and Probate Act 1958 (Vic). We recommend you seek legal advice to determine if and how the intestacy rules apply to your matter.
How to remove an executor of a Will or administrator of a deceased estate
In order to discharge or remove an executor or an administrator of a deceased estate, an application will need to be made to the Supreme Court of Victoria under section 34 of the Administration and Probate Act 1958 (Vic).
In Victoria, an executor or administrator can be removed in any of the following circumstances:
- If they have remained out of Victoria for more than two (2) years);
- If they consent to being discharged from the role of executor or administrator;
- If they refuse to act as executor or administrator (after the Grant of Probate or Grant of Letters of Administration is made);
- If they are incapable of acting as executor or administrator (for example, if they do not have the necessary capacity to act);
- If they are unfit to act as executor or administrator (for example, they do not appropriately fulfil their responsibilities and obligations). If the executor or administrator does not fulfil their duties, it may be grounds for them to be removed from the role.
Applying to the Supreme Court of Victoria to remove an executor or administrator can be complicated. Depending on what grounds you are applying on to have an executor or administrator removed from the administration of a deceased estate, you may be required to specify under what section of the Administration and Probate Act 1958 (Vic) they have failed to fulfil their responsibilities and obligations, as well as provide sufficient evidence to prove your allegation/s.
We recommend that you seek legal advice before making an application to remove an executor, to determine whether you are likely to be successful.
Who can make an application to remove an executor of a Will?
Not anyone can apply to remove an executor or administrator of a deceased estate.
An applicant seeking that an executor or administrator be removed from the administration of the estate needs to have a sufficient interest in the proceeding.
This does not necessarily mean that only beneficiaries of the estate can make an application, but it will be for the applicant to show that their circumstances give rise to such an interest.
We note that the Court is often reluctant to remove an executor without a significant reason (eg. if there have been long delays or a considerable conflict of interest or dispute). This is because the deceased’s choice of executor is paramount. So, any decision to remove this person (and effectively disregard the deceased’s wishes) is not done lightly.
This high threshold is the same for administrators of an estate. This is because the Court has already appointed an administrator who they believe is the appropriate person to act. Often, the administrator will be the beneficiary who is entitled to the largest portion of the estate – so it is usually the case that this person will not act improperly in administering the estate as it is not in their interests to do so.
We can help determine whether you are a person with a sufficient interest in the estate in question and, therefore, whether you can make an application to remove an executor or administrator.
How a Wills and Estates lawyer can help
Smith Family Law can assist you in removing an executor or administrator of an estate and help determine whether you have grounds to do so.
We will ensure we exhaust all mediation and dispute resolution options prior to commencing any legal proceedings. This approach helps to lessen the stress and uncertainty involved in legal proceedings and saves you time and money.
Our lawyers have a strong history of obtaining successful outcomes for our clients, through mediation or negotiations, without the need for our clients to experience costly and lengthy court proceedings.
Contacting Smith Family Law
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Smith Family Law.
